In today’s modern workplace, it’s not uncommon to find the spheres of business and personal life converging. Social networking platforms such as Facebook, Twitter and even Instagram are being used for business and talent recruitment.
Nobody likes a busybody boss but it also cannot be denied that employers have a certain responsibility to ensure that their employees adhere to acceptable standards of professional conduct. However, what is debatable is how far employers can go when it comes to monitoring their workers. Is there such a thing as privacy in the workplace?
Malaysian law does not have specific legislation addressing the right to privacy. On the contrary, Malaysian courts have previously been reluctant to hold that there is a general right to privacy (aside from the usual obligations of confidentiality that arise from contractual or certain professional relationships). The closest we have is the Personal Data Protection Act 2010 (“PDPA”) which regulates how personal data can be collected, processed and used. However, personal data protection, while related, is still a much different creature from privacy rights.
Can your employer spy on you?
Most businesses are equipped with closed-circuit television (“CCTV”) to monitor the premises. Business owners are advised to display a notice to be placed at the entrance of the CCTV surveillance zone to inform visitors and employees of the CCTV operation.
According to guidelines issued by the Malaysian Personal Data Protection Department, the primary purpose of CCTV installation at the workplace is for “crime detection and prevention”, and hence it “cannot be misused for other purposes such as staff monitoring”. It is a curious distinction by the Personal Data Protection Department since crime can also be committed by employees (for example, by those having access to cash or valuable company property). As the law itself is new, it will be interesting to how the guidelines are interpreted to determine what kind of “staff monitoring” amounts to “misuse”.
Notwithstanding the above, employees (and employers!) should not be too eager to believe that secret CCTV footage or tape recordings will be inadmissible against them. In a 2011 case for unfair dismissal, the Industrial Court accepted evidence of a tape recording which implicated the employee, even though the employee had no knowledge of and did not consent to the tape recording. In 2013, the Industrial Court likewise accepted a “secret” tape recording made by an employee. These cases are also in line with the general principle that illegally obtained evidence is still admissible if relevant.
In any event, employees should always behave professionally on the job, whether or not someone is watching you.
Watch What You Tweet
If you ever thought that 140 characters are not enough to make any sort of impact, you may want to learn from Connor Riley who practically tweeted herself out of a job. Upon receiving a job offer from Cisco, she tweeted: “Cisco just offered me a job! Now I have to weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work.”
A Cisco employee replied: ““Who is the hiring manager. I’m sure they would love to know that you will hate the work. We here at Cisco are versed in the Web.”
Needless to say, Riley is not currently working at Cisco.
Riley’s mistake was her assumption that she was only sharing her tweet with a small circle of friends, not realising that she did not set any privacy settings on her account.
Even with privacy settings, employees should remember that nothing is really “private” on social media. Considering how most social networks comprise more acquaintances than actual friends, there is nothing to stop a malicious connection from screen-capturing your posts and sharing it with the world. A golden rule to live by would be: “if you wouldn’t want your boss or mother to see it, don’t post it.” This is especially true since more and more employers are turning to social media to conduct some basic due diligence on potential hires.
“You can learn a lot about a candidate by looking at their Facebook page or Twitter page,” says one human resources manager. “I once rejected a candidate because her Twitter page was filled with complaints about her current job and how much she hated her company. She seemed like she would have been a difficult employee to deal with.”
A survey conducted by Harris Interactive concluded that many employers will reject a job candidate based on their social media activity. 50% of the employers surveyed said they had eliminated job applicants who had posted provocative or inappropriate photos, and 48% said they were turned off by candidates who posted information about drinking or drug use.
On the positive side, the same survey found that 19% of employers said “positive” social media postings could also solidify a decision to extend a job offer. For example, if the candidate’s social media profile conveys a professional image, shows a wide range of interests and is supported by professional qualifications.
Tea Room Gossip
In 2006, an employee was dismissed from her job at an insurance company after the company found out she had been using her computer in her office to “chit chat” with her colleagues by making derogatory remarks about her senior officers. While the Court did not specifically consider the issue of privacy (given that the conversations were in e-mail conversations which the Company accessed), they found that her dismissal was unfair, as “it is quite common and natural for staff to gossip about their superior officers. It can happen anywhere and anytime especially when there is a gathering. The court believes the claimant’s story that it was not meant to undermine any senior officers but merely tea room gossip.”
Interestingly enough, the Industrial Court went further to say that even though the words used by the employee were “vulgar and derogatory”, it was not misconduct because “the words or language are only used behind their backs and only between a few friends… if those derogatory words were to reach the ears of the senior officers through a third party it would not be the same as it is said directly to the senior officers.”
However, employees should tread carefully in trying to use the above case as “carte blanche” to say whatever they want about their employers or superiors, whether to their face or behind their backs. There is another Industrial Court case which found that even if e-mails were meant for personal reading, if they are typed on the company’s computers and sent during office hours, they become property of the Company. In this particular case, the Court upheld the dismissal of the employee, stating that the employee should not have entertained e-mails from a subordinate staff disparaging her own boss. The Court stated that the employee “should have risen above her feelings for a difficult boss and she owed it to the Company to act professionally.”
Office gossip is unprofessional and creates unnecessary tension in the workplace. Employees should voice their grievances through the appropriate channels and not take to gossip or social media. Employees should also take note that based on precedent, companies may be entitled to look at your personal communications if they were made using company property.
Can your employer look at your life outside of work? Is there a distinction between “personal life” and “work life”?
An employer may become aware of certain conduct by an employee committed outside of the workplace or outside the scope of his employment. Do they have a right to take disciplinary action against an employee who commits undesirable conduct outside of the workplace / outside office hours?
The courts has previously held that there must be a causal link between the misconduct committed and its impact on the business and image of the employer. For example, it was lawful for a bank to dismiss their branch manager who was associated with a “get rich quick scheme” since the association resulted in the bank’s name being implicated in the scheme, and had affected the image, integrity and credibility of the bank as a financial institution.
The Death of Privacy?
All the above scenarios demonstrate that employers do have some leeway in looking at certain aspects or activities of their employees’ lives which are not necessarily related to their work performance. Whether you like it or not, you may be judged by what you say and do online and in your private life.
Pete Cashmore, the founder and CEO of Mashable, once said that “Privacy is dead, and social media holds the smoking gun”. This may be true, but don’t blame the gun if you supplied the ammunition.
This article was written by Donovan Cheah, partner of Donovan & Ho in collaboration with Office Parrots, an online platform for professional firms in Malaysia and Singapore to showcase their organizations for recruitment purposes. Donovan’s articles have appeared in publications like The Star, American Chamber of Commerce updates, and Asialaw.