Employees need to be told: Using social media during work hours and on work equipment waives any rights to privacy.

This is the advice of Werksmans Attorneys director Nastascha van Vuuren‚ who says “most employers are not aware‚ or concerned‚ that…they can be held vicariously liable for the statements posted by employees”.

While the liability of employers in this regards “remains untested in many jurisdictions”‚ Van Vuuren quoted two cautionary cases.

The first involved a successful legal action against The Carphone Warehouse in the United Kingdom in 2012‚ when two employees posted “a status update on the claimant’s Facebook page‚ without his permission or knowledge”.

 It read: “Finally came out of the closet. I am gay and proud.”

“The court found that this statement was posted in the course of those employees’ employment‚ because the employees’ actions took place during working hours and it involved dealings between staff and a manager‚” said Van Vuuren.

“As such the employer was found vicariously liable for the conduct which amounted to harassment on the grounds of sexual orientation.”

A similar case involved a female Continental Airlines pilot in the US who claimed she was sexually harassed by fellow pilots “who posted defamatory and false statements about her on an electronic bulletin board used by the employer’s pilots”.

“Employers can also be held vicariously liable for the actions of employees that take place outside the workplace and out of working hours‚ if it concerns the employer and / or employees‚” said van Vuuren.

She suggested:

- Clear guidelines should be made available to employees on the extent to which they may use the internet and social media during work hours‚ and such guidelines should detail what is and what is not appropriate content; and

- The employer should make it clear that by using social media on work-provided equipment and/or during work hours‚ employees waive any rights to privacy so that monitoring can take place.