Social Media Use
Author: Beth Zoller, XpertHR Legal Editor
The use of social media in the workplace by both an employer and an employee is rapidly expanding as technology evolves and becomes ever more present. As a result, an employer needs to understand how to develop effective social media policies and properly monitor employee use of social media. Further, an employer should recognize the liability concerns that employee use of social media creates, from the disclosure of the employer's confidential and proprietary information and trade secrets, to discrimination and harassment claims, to decreased employee productivity. While it is important for an employer to regulate the employee use of social media, this must be balanced against the right of employees to lead personal and private lives.
Further, an employer needs to know when, whether and how it should use social media for recruiting and hiring purposes to gain more information about job applicants. It should be aware of social media privacy legislation that is being proposed and passed at both the federal and state level to prohibit employers from seeking social media password account information from applicants and employees as a condition of employment.
Lastly, an employer should be aware that the National Labor Relations Board has taken the position that employees can engage in protected concerted activity and engage in collective action to improve their working conditions over social media such as Facebook. Therefore, in enforcing any social media policy and disciplining employees for social media use, an employer should proceed cautiously.
XpertHR has a variety of Tools and resources to help guide an employer through the legal pitfalls of social media use.
- Deal With an Employee Who Has Posted Negative Comments About the Company on Facebook or Other Social Media
- Determine Whether a Social Media Post Is Protected by the NLRA
- Establish Social Media Strategy for Recruitment and Job Screening
- How to Draft and Enforce a Social Media Policy in the Workplace
- How to Use Social Media in the Recruiting Process
- How to Draft a Social Media Recruitment Policy
Policies and Documents
- Social Media Policy
- Social Media Account Ownership Agreement
- Acknowledgement and Consent Form for Social Media Use
- Third Social Media Report from NLRB Provides Guidelines for Lawful Social Media Policies
- Employers Should Get a Handle on Twitter and Linked in Accounts by Addressing Them in Social Media Policies
- Employee Use of Social Media May Constitute Protected Concerted Activity
- Employer's Unauthorized Access to Employee-Only Social Networking Website Violates Stored Communications Act
- Facebook Protected From Discrimination Claim Because it Operates in Cyberspace
- Top social media issues affecting the US workplace
- XpertHR survey finds social media use rising
- US Employers Failing to Combine Social Media Policies with Training, XpertHR Survey Finds
- SHRM 2013: Sales and Social Media Take Center Stage
Webinars and Podcasts
- Dos and Don'ts Regarding Social Media Policies - Chart
- Social Media Password Privacy Protection Legislation - Chart
Employment Law Manual
- Employee Management > Employee Privacy > Monitoring Use of Social Media Networks
- Recruiting and Hiring > Recruiting > Social Media
- Employee Management > Employee Communications > Online Restrictions and Social Media Policies
- Labor Relations > Labor Relations Overview > Employer Interference With Concerted Activity for Mutual Aid or Protection
- Employee Management > Employee Discipline
- Employee Management > Employer Liability Concerns in Employee Management
Recruiting and Hiring
- Is it OK for an employer to use targeted advertising on Facebook or other social media sites?
- What discrimination risks do employers face if they use social media in recruitment?
- What should recruiters do if they come across information on a public social media site that casts doubt over an applicant's judgment?
- Should employers use recommendations for job applicants that are posted on LinkedIn and other social media sites?
- What privacy concerns should an employer be aware of when recruiting using social media?
- How can an employer reduce its discrimination risks while using social media recruiting?
Social Media Policies
- What types of social media policies have courts found unlawful?
- What are the essential elements of a social media policy?
- Can an employer place restrictions on an employee's comments about the employer on social media networks?
Disciplining Employees for Social Media Use
- May an employee be disciplined for posting negative comments on Facebook or another social networking site?
- Are there any circumstances under which it is unlawful to discipline an employee for posting negative comments on Facebook or another social networking site?
- What can an employer do if a former employee posts a derogatory comment about it on a social networking site?
- What can an employer do when an employee has posted negative comments on Facebook or another social networking site?
- May a defamatory comment posted by an employee on his or her Facebook page be used as evidence in the employee's disciplinary proceedings?
Protected Concerted Activity and the NLRB
- How are unions using social media in organizing?
- Are Facebook posts, tweets and use of other social media protected by the National Labor Relations Act?
- Do employee complaints regarding an employer's working conditions over social media such as Facebook constitute protected concerted activity?
Social Media Accounts for Work-Related Purposes
- What criteria will a court use to evaluate whether an employee or employer owns a social media account used for business purposes?
- What elements should a social media account ownership agreement address?
- Why is it important for an employer to address who owns social media accounts used for business purposes?