Employer Control of Employee Behaviour Through Social Media

Sarah Hook,Sandy Noakes

doi:10.5204/lthj.v1i0.1302

Abstract

When once individuals could ‘clock off’ for the day and retreat into private spaces, these private activities are increasingly prone to being recorded, tagged and shared and brought to the attention of an individual’s employer. The unavoidable necessity for people to engage with each other online has blurred the boundaries between work life and private life and has meant that, increasingly, employers seek to control what employees do and say online, which requires individuals to carefully modify their behaviour in once private domains. As individuals become inured to the realities of being tracked and mined, the resigned cynicism of the situation is creating a culture where freedom to ‘be yourself’ is undermined. This paper will explore examples of individuals who have faced consequences at work for their online behaviour in what once would have been thought of as their private domain. Using surveillance theory, it will seek to ask whether such a gap in the legal and regulatory sphere is at risk of submerging the individual into a docile workforce which is never ‘off the clock’.

Highlights

In 1935, Hubert O’Donnell, a porter with the Department of Railways, was charged with manslaughter.[1]
The unavoidable necessity for people to engage with each other online has blurred the boundaries between work life and private life, meaning that employers increasingly seek to control what employees do and say online, requiring individuals to carefully modify their behaviour in once private domains
It will seek to ask whether such a gap in the legal and regulatory sphere is at risk of submerging the individual into a docile workforce that is never ‘off the clock’

Summary

Introduction

Despite the precision or use of the technology, what is most important is the employee’s knowledge of the employer’s constant observation and the fear of workplace repercussions for speech or acts done away from work It is this constant observation and normative judgement that subsequently follows that forms the training of the ‘malleable docile body’ that Michel Foucault warned us about.[10] The role of law becomes about how people can be protected—not from technology—but from the power imbalance and ramifications of surveillance. The more that SM policies become standard practice, the more authority they gain, leading to normalising employer surveillance of out of work conduct, making it difficult to dislodge and for the law to regulate It provides non-state actors the power to determine behavioural norms outside the criminal justice system without. We argue this can be done through an acceptance by the courts and tribunals that the employee does not have a duty to protect the employer’s reputation beyond the scope of the employee’s duties and is free to have a non-work persona

Part 2: Disputes In The Australian Case Law

Conclusion