Sharing Instagram reels of employees chatting about their favourite products or hopping on the latest TikTok trends sounds harmless, but what happens when this content goes viral – or attracts negative attention?
Featuring employees on a company’s social media has never been more popular, but the legal implications can be significant.
In fact, putting staff in the spotlight raises several questions: Can employers require employees to participate in social media content promoting the business? And what should employers do if someone flat-out refuses to take part?
Key considerations for employers
- Limit the risks: Be mindful of the legal ramifications of featuring your employees in social media content or filming in the office. Protect confidential information visible on computer screens or whiteboards, and establish clear procedures for obtaining consent to safeguard employee privacy and confidential information.
- Clearly define employees’ social media duties: If you feature your employees in social media content, this should be reflected in their position description. If an employee is unaware that creating or appearing in social media content is part of their formal duties, they may refuse to participate
- Proactively support employees: Ensure your employees know where they can raise concerns or seek help regarding their involvement in social media.
Can a SME direct an employee to participate in a video for social media?
Out of the blue? Probably not. The general view is that employees are only obliged to follow directions that are both lawful and reasonable. However, an employer’s direction for an employee to participate in and be filmed for a social media video can be lawful and reasonable if it meets certain criteria.
First, the request must be lawful – meaning it cannot require anything illegal or beyond the employee’s scope of work.
Second, the request must be reasonable. This is assessed based on the circumstances, including the employee’s role, workplace customs and the terms of relevant instruments like modern awards and enterprise agreements. An employer does not need to prove that the request is the best or most appropriate course of action, only that it is reasonable in the given context.
If social media content creation is a regular part of an employee’s duties, it’s likely reasonable to ask them to participate. But if it’s outside their role, the request may be less so.
What if an employee refuses to participate?
Whether an employee can be disciplined for declining a lawful and reasonable direction to participate in social media content will depend on the facts at hand. Exercise caution to avoid being exposed to a claim for adverse action, or unfair dismissal under the Fair Work Act 2009 (Cth).
If an employee expresses concerns about being filmed, the employer should address them appropriately. Declining a request to participate in a TikTok video could potentially be seen as exercising a workplace right if the refusal is framed as a complaint or inquiry about the employee’s employment.
What risks should employers consider before posting content featuring employees?
For many marketing teams, a TikTok video going viral is a dream come true. However, the reality can be less exciting if the video attracts negative attention – and when content is posted by the company’s account, the employer may be held accountable for any backlash.
One major risk is the potential for sexual harassment from outside the company. Since December 2022, employers have had a positive duty to take reasonable and proportionate measures to eliminate, as far as possible, sexual harassment. While this duty generally applies within the office or workplace, posting on social media can expose employees to harassment through online interactions.
Additionally, there are significant risks to employees’ health which could lead to workplace injuries and subsequent WorkCover claims or common law damages claims, for example for psychological or physical harm from trying the latest TikTok trends. Frequent requests for ‘volunteers’ or the risk of being filmed in the background of a video without consent could also be considered a psychosocial risk.
Employers should plan how to address complaints about the potential psychosocial hazards that can arise from content creation. In addition to workers’ compensation claims, they have a positive duty to manage the risks linked to these hazards, and their response could affect future claims. What’s deemed reasonably practicable will vary depending on the size of the business.
As this is a relatively new issue yet to be considered by the Fair Work Commission, employers should focus on best practices and anticipate foreseeable risks when involving employees in content creation.
By Holding Redlich State Managing Partner Rachel Drew, Special Counsel Rose Dimitrious, Lawyer Maud Beach, and Intern Corinne Mulholland
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