Social media and the employment contract

Many employment contracts today include a social media clause. This provision or clause describes the guidelines and house rules around employees’ use of social media in the workplace. Social media and employment law are subject to strict conditions with an eye on privacy. Laying down the use of social media in the employment contract creates clarity. What does such a social media code of conduct look like and what is the role of this clause in case of dismissal?

Social media and employment law

Social media occupy an important role within society. For companies, channels such as LinkedIn, Twitter, Facebook and Instagram are essential for sharing business messages, increasing visibility and maintaining business contacts and relationships. Employees’ use of social media in the workplace is also inevitable. And this is not without risk.

After all, what if an employee’s posts or messages via social media cause harm to the employer? Or what about the consequences of negative posts on social media by a (former) employee after dismissal? Social media in employment law is a growing topic of conversation. As an employer, it is therefore wise to make clear agreements with employees and include house and conduct rules around social media in the employment contract.

Social media clause in the employment contract

One way to include rules around social media in the employment contract is to draw up a social media clause. This social media code of conduct usually assumes good employee conduct. This means that an employee is personally responsible for what is shared online on social media in relation to the employer, but also in private.

Banning the use of social media by an employer is virtually impossible – after all, the employee has freedom of expression – however, employer and employee can make agreements. These rules of conduct may include the use of social media during working hours, but may also stipulate that (former) employees may not make negative statements about an employer online.

Social media employment agreement: privacy

When drafting a social media code or regulations around social media in the workplace, an employer must take into account the employee’s privacy rights. Without agreements, it is not allowed to monitor an employee’s use of social media. By laying down house rules around social media in the employment contract or drafting a social media code of conduct, an employer does have this leeway. Note: an employer may only monitor an employee’s social media channels when there is a legitimate reason to do so.

Social media and the non-solicitation clause

A social media code of conduct can be laid down in the employment contract when entering into a partnership, but it can also be drawn up after a dismissal or termination of employment. In practice, a social media clause when an employee is dismissed or leaves employment is often linked to the non-solicitation clause. A relation clause limits an ex-employee’s ability to approach existing customer relationships after leaving employment. However, as with rules for social media and the employment contract, it is necessary to explicitly state in the relation clause which social media the clause applies to and which actions are labelled as violations of the social media clause.

Rules for social media after dismissal

Often a dismissal is an emotional event. Especially when an employee disagrees with a dismissal, social media can serve as an outlet. An employer can influence the use of social media after dismissal of a former employee. To prevent a former employee from expressing negative views, it is possible to include a social media clause in the settlement agreement. This clause protects the employer’s good name, for example by prohibiting the ex-employee from speaking negatively about the company. As with social media and the employment contract, employers and employees must agree this clause in writing.

Draft or review social media clause

Coarse or damaging comments made by employees on social media can lead to summary dismissal. However, strict requirements do apply in this situation. Practice shows that drafting a social media clause or clear regulations around social media in the employment contract gives employers more freedom in the event of serious online misconduct by an employee or ex-employee. An employment law lawyer from Fruytier Lawyers in Business will be happy to help you answer issues surrounding social media in the workplace. We can also support you in drafting or reviewing a corporate social media clause.