Overview: Social media in the workplace is one of HR's greatest challenges at the moment, given the almost daily changing legal and technological landscape. First, there is the issue of whether and when an employer may monitor employee use of social media. It is critical for employers to develop and implement a social media policy which guides employees with respect to proper use of social media. Employers should aim to strike a balance between monitoring employee activity and respecting employee privacy rights as well as the right of union and non-union employees under Section 7 of the National Labor Relations Act (NLRA) to engage in protected concerted activity.
Social media policies should clearly articulate the legitimate business interests the employer seeks to protect as well as provide clear definitions of prohibited conduct and private and confidential information and specify the consequences for violations of the policy. While employers have a valid interest in prohibiting the disclosure of confidential information and trade secrets over social media and prohibiting discriminatory and obscene conduct, employers should avoid interfering with the employee right to improve their wages, hours and working conditions and engage in protected activity.
Further, employers may be interested in using social media in the workplace as a tool in recruiting and hiring and management in order to gain more information about job applicants and employees.
Trends: There is a growing movement among state and federal lawmakers to pass legislation that would prevent employers from requiring that employees and applicants provide their user names and passwords to social media networks. This would essentially prohibit employers from seeking personal and private information about employees and applicants which could then be used as a basis for an adverse employment action.
In addition, the National Labor Relations Board has shown a clear willingness strike down social media policies that could be reasonably interpreted to chill the right of union and non-union employees to engage in protected concerted activity under Section 7 of the NLRA. Further, employers should be cautious about disciplining employees for social media use when they are engaging in protected concerted activity.
Author: Beth P. Zoller, JD, Legal Editor
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A recent ruling from the 4th Circuit makes clear that a "like" on Facebook is considered free speech and, accordingly, protected under the First Amendment. Employers - in particular public employers - should be aware of this case when disciplining employees for social media use especially where the only action at hand was the endorsement of other posted content.
Following a nationwide trend, New Jersey is now the 12th state to pass a social media privacy law (A2878). The new law, which takes effect on December 1, 2013, prohibits employers from requiring employees and job applicants to disclose their user names, passwords and other means of access to their accounts or profiles on social networking websites through electronic communications devices.
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HR guidance on creating policies on social media in the workplace. Support on creating enforceable, useful policies on social media at work.