Social media development has always outpaced legal solutions that are meant to regulate it. Are employers powerless in trying to reign in their staff activity on Facebook, Twitter, Instagram, etc.? It’s true that Polish employment law does not regulate the issue of employees posting content on their private accounts on social media but the absence of such regulations does not mean that employers are completely powerless.
As a general rule, employers may not interfere with content published by employees on their personal social media accounts. If, however, employees post comments about their employer, the workplace or their work position, they should be made aware that some of their personal posts may be treated as views expressed by their company or as opinions that either are acceptable to the employer or, conversely, may harm the company. Employers should periodically educate their staff about these areas of potential conflict and should lay down written rules and guidelines.
If an employee’s posts may damage the employer’s reputation because they breach the law or social norms, the employee who posted such information may suffer consequences. Employers have the right to protect their image and may take issue with employees’ personal activity on social media in order to prevent damage to the company’s reputation.
Employers may – and indeed should – expect that workers posts on social media won’t lead to disclosure of confidential information or business secrets. The same is true of staff’s controversial statements on social, political or cultural topics. As part of the duty of loyalty to the company, employers may require employees refrain from commenting on, or “liking”, the marketing material of competitors. Employees should also refrain from commenting on information about competitors’ clients and employees. Although such behaviour may not be a direct reason to dismiss an employee, it may be a circumstance indicating that the employee has breached the obligation of loyalty to the employer.
To minimize the risk of employees undesirable behaviours on social media, an increasing number of employers lay down written policies explaining which behaviours and activities of employees are permitted and which ones are undesirable. Frequently such rules are incorporated into workplace by-laws or corporate information policies. Such policies may set out rules for tagging the employer in employees’ personal accounts, and rules for publishing posts about the employer, fellow employees and comments on competitors’ activities.
Generally, employers may not prohibit employees from posting critical comments as long as such views are fact-based and intended to achieve a positive result, such as an improvement of the company’s business operations and are not dictated by an intention to harm the employer’s image.
Internal rules regulating the use of social media facilitate the resolution of conflicts resulting from such use, but they should be developed in a way that does not affect the employee’s rights. For example, an information policy may not intrude upon the employee’s private life to a greater extent than necessary and permissible.
An increasing number of social media outlets and growing user activity is likely to lead to even more frequent issues with the assessment of employees’ activity on social media, and with the on-going pandemic and remote work these issues may become even more pronounced. Sensitizing employees and educating them about the rules relating to content they post online, in particular information about their professional sphere, seems to be the only solution to this growing problem.