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
The NLRB Office of General Counsel has released an advice memo providing insight into the types of social media work rules that are unlawfully overbroad following its 2017 ruling in The Boeing Company.
Updated to reflect amendments to medical marijuana law, effective July 2, 2019.
Updated to include the Cannabis Regulation and Tax Act, effective June 25, 2019.
Updated to reflect forthcoming New York City law relating to preemployment testing of marijuana.
Updated to reflect amendments to state 'ban the box' law, effective January 1, 2019.
Updated to include the privacy-related provisions of the Michigan Regulation and Taxation of Marihuana, effective December 6, 2018.
Updated to include the privacy-related provisions in the law legalizing medical marijuana, effective December 6, 2018.
Under review in light of OSHA's rule regarding electronic submission of Forms 300 and 301.
Updated to reflect eligibility for medical marijuana use based on obstructive sleep apnea or autism, effective August 1, 2018.
Updated to include amendments to data breach security law, effective June 2, 2018.
HR guidance on creating policies on social media in the workplace. Support on creating enforceable, useful policies on social media at work.