These days, employers navigating social media in the workplace have a lot to worry about. Social media is a huge part of most employees’ lives, and what your employees post online can definitely impact your business, both positively and negatively. But before you write your social media policy, take action against an employee for what they posted, or even look at your employee’s social media accounts, be aware of the laws that affect social media in the workplace and what they mean to you as an employer.
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The Laws that Govern Social Media in the Workplace
The National Labor Relations Act, state-specific regulations, and unlawful harassment laws on both the state and federal levels dictate how employers can regulate and react to employees’ social media activity.
For example, your employees, even those of you who are not currently unionized, have a right to organize. This and other rights are included in an employee’s overall section 7 rights. The Federal National Relations Board oversees these rights. Additionally, several states have specific social media regulations regarding privacy passwords.
National Labor Relations Act
Generally, the National Labor Relations Act protects the rights of employees to self-organize and bargain collectively. According to the National Labor Relations Board, that includes Facebook, Twitter, and any other social sites or apps.
Section 7 of the National Labor Relations Act also protects concerted acts when two or more employees act together to protest or complain about their wages, benefits, or other terms and conditions of their employment. Because of these regulations, you must understand employee protection relating to social media. An employee’s actions on social media that an employer might find harmful or derogatory may qualify as concerted activity and protected speech.
For example, if an employee says on their Facebook page, “I don’t get paid enough to put up with these stupid rules. I should quit.” That is protected speech according to the National Labor Relations Board and Employee Section 7 rights. If an unwitting employer sees that post and disciplines that employee for that statement, they may be violating the employee’s right to complain about the terms and conditions of their employment, and therefore expose the organization to liability as a result of this violation.
National Labor Relations Board
Since 2011, the National Labor Relations Board has repeatedly struck down provisions of employers’ social media policies and reversed employees’ employer discipline based on employees’ personal social media activity.
According to the Board, these employers violated Section 7 of the National Labor Relations Act by implementing policies that interfered with the employee’s right to discuss the terms and conditions of their employment or disciplining employees exercising that right in social media.
Employers may also encounter issues arising from their growing reliance on social media to advance their business interests. For example, recent decisions by the National Labor Relations Board administrative law judges suggests that if employers allow employees to use corporate social media platforms, such as Yammer or for non-business purposes, the National Labor Relations Board will attempt to impose the same restrictions on employers that it has applied to employee’s social media activity.
State Specific Considerations
As of July 2020, at least 26 states have specific laws protecting employee rights on social media. While these laws differ significantly in scope, they do share one common thread. They all prohibit employers from asking applicants for their username, password, or other login credentials for their personal social media accounts.
Many of these states also prohibit an employer from forcing employees or applicants to log in to their accounts in the employer’s presence. Additionally, retaliation against an employee or applicant for refusing to grant access to a social media account is unlawful in most of these states. Ensure you’re aware of the laws governing social media in the workplace in every state where you have employees.
Harassment and Social Media
Employers have a duty to investigate any unlawful harassment they know about or should have known about, but do employers have a legal obligation to address harassment that occurs on social media? Can activity on social media put an employer on notice of illegal harassment? And should the employer then investigate that notice?
This is an evolving area of the law. But several cases show that employers should treat online harassment the same way they would any other type of workplace harassment. Don’t seek out your employee’s social media activities, but if you are aware of harassing behavior, you need to act. Because of this, you should have a well thought out social media policy acknowledged by your employees.
Best Practices for Social Media in the Workplace
If possible, avoid looking at your applicant’s and employee’s personal social media accounts. Do not ‘friend’ employees, especially not subordinates. Do not use information from social media accounts in your employment decisions. Have clear policies in place to guide employees regarding appropriate usage of social media in your organization.
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If you view social media accounts during the recruiting process, your hiring decision may be harder to defend even if you did not rely on any protected information you found there.
For example, if you have seen information on an applicant’s social media page that indicates that they are a member of a protected group, it will be hard to guarantee that any decision you made was not discriminatory and based on that knowledge. Remember, you will have to prove that you did not discriminate against the applicant or employee, and it’s tough to prove a negative.
In the interview, focus on the essential functions of the position and whether the applicant can perform those functions. Sticking to questions related to the position’s essential functions yields the best information and limits your hiring risk.
Don’t friend employees; it’s risky, especially if you only friend certain employees. Treating employees differently, even with good intentions, leads to claims of favoritism and discrimination.
Also, Title 7 of the Civil Rights Act prohibits employment discrimination based on race, color, religion, sex, and national origin. When you friend employees, you expose yourself to all sorts of protected information on their social media accounts. And if you are ever challenged, how will you show that any of that protected information was not a factor in your decision?
Social Media Policy
It would be best if you made social media policy in your employee handbook. And when developing your policy, be sure to define the rules and explain the consequences to employees.
Employees should understand the company’s social media policy and understand the consequences of violating the policy. Additionally, have all employees sign an acknowledgment form stating they have read, understand, and agree to this and every other policy in the employee handbook.
Once you’ve defined the policy’s parameters and guidelines, make sure to monitor the policy closely and update it often as social media changes rapidly.
Creating an Effective Policy
The first thing that a good social media policy does is address what social media includes.
Social media includes all means of communicating or posting information or content of any sort on the internet, including your own or someone else’s blog, journal or diary, personal website, social networking, etc., whether or not these are associated or affiliated with the company. Any form of electronic communication qualifies.
The same principles and guidelines found in company policies apply to employee’s activities online. In the policy, employees should know they’re ultimately responsible for what they post. Before creating online content, employees should consider the consequences.
Keep in mind that any employee conduct that adversely affects job performance or the company’s legitimate business interests may result in disciplinary action up to and including termination. Inappropriate postings that may include discriminatory remarks, harassment, and threats of violence will not be tolerated.
If an employee consistently violates these parts of the policy we recommend talking to an HR professional before taking any adverse action against them.
Social Media on the Clock
While employers may not have the ability to tightly regulate what an employee does on their personal social media accounts, employers can determine how employees spend their time while on the clock. In addition to prohibiting the use of personal social media accounts during work-time, you may want to specify that employees may not use work emails to create personal social media accounts. And may not, without authorization, create a social media account that speaks for the organization.
Social Media in the Workplace: Things to Remember
Don’t prohibit protected activity. Employees have the right to post or talk about their social media accounts regarding wages, working conditions, hours, or other terms and conditions in their employment.
Be sure to prevent bullying and harassment in the workplace when it comes to your attention. This includes both online and offline behavior.
Also, make sure that you’re complying with federal and state laws. And be sure to educate and enforce your existing policies. Remember that social media rules are constantly evolving, so make sure to stay updated on the latest news. If you need updates and training, you can access it for free from our online platform.