Many employers now scan the social media posts of applicants and employees, using both overt and covert methods.

Surveys have indicated that most employees or applicants disapprove of the practice. However, much of the content is in the public domain anyway, and employers can potentially benefit in several ways from monitoring it. 

Recruitment and selection 

It is not unlawful to search job applicants’ social media profiles. Where problems may arise is in how employers subsequently react to the information they discover. 

Profiles may reveal personal details about applicants that aren't on their employment applications. This may include race, age, relationship status, family/carer status, sexual orientation, religion, political views, and physical appearance. If a decision not to hire someone was based on one or more of those attributes, there could be grounds for a claim of unlawful discrimination. 

It is better not to check social media profiles until relatively late in the recruitment or selection process. This improves your ability to argue that decisions were made on the basis of merit and work-related factors, as you were unaware of the personal attributes at the time. 

Be upfront about it 

Be upfront about telling applicants that social media profiles will be scanned. If you find information of concern, raise your concerns with the applicant and seek an explanation before making any decision. 

During employment 

Once again, recommended practice is to tell employees that you will be monitoring their social media postings, and explain why. However, as with recruitment, you can conduct monitoring as the information on social media is “public”. If you legitimately suspect an employee of some form of wrongdoing, seeking evidence by monitoring their social media use is not inappropriate. If employees wish to restrict who views their social media content, they can use appropriate privacy settings on their accounts. 

Problems tend to arise when employees post content that has the potential to embarrass them but is done with the expectation that the employer will not discover it.

Typical examples include: 

  • The employee is off work sick but posts a photo on social media of themself at the beach or a sporting event that day. 
  • The employee posts derogatory comments about their employer and it is possible to identify the employer from the content. It is common for employees to follow or “friend” co-workers and sometimes their managers as well (and vice versa), so the chances of the employer becoming aware of such content are relatively high. 
  • Evidence of conduct that has the potential to affect job performance, such as excessive alcohol or other drug consumption. 

You cannot force an employee to accept their employer as a “friend” on sites such as Facebook unless the parties agreed to it when the employment contract was negotiated. Nor should an employer resort to devious tactics such as setting up fake accounts to monitor employees without their knowledge. 

You need to be careful about what actions follow the discovery of content on social media. Responses should not amount to discrimination, bullying, or adverse action. If considering dismissal, the process needs to be procedurally fair to the employee – for example, notify the employee of discovery of content and provide an opportunity to explain it. 

A potential upside? 

Apart from the above basically “police” role, monitoring may have some other benefits. If you gain a greater understanding of what may be happening in the employee’s private life, it may be possible to adopt a more constructive approach to issues such as performance management and flexible work arrangements – but be careful to avoid infringing employees’ privacy. 

Social media policy recommended 

A clear policy covering both employees’ use of social media in relation to work matters and employer monitoring of it is recommended. 

It should remind employees of the highly public nature of social media content and the need to be mindful of posting content that could be personally embarrassing to them and potentially detrimental to employment. Provide examples of the latter.  

It may help to provide information about the privacy settings employees can use to protect themselves and the need to update them regularly. In some cases, employees have attempted to argue they were unaware of the use of privacy settings or unaware of the extent to which social media content can be “broadcast”. Ensuring they are better educated in this regard may reduce their opportunities to use such a defence. Therefore, providing training in how to use social media in compliance with your policy is also worth considering. 

In summary, the more transparent an employer is about its approach to monitoring employees’ social media content, the more likely monitoring will be accepted by employees and the more responsible in relation to work-related issues when using social media they are likely to be.