Social Media and the Workplace: 6 Key Considerations for Employers

By Bobby Puri | LexisNexis Practical Guidance

Social media is a cornerstone of nearly every company’s business strategy. Large platforms such as Facebook, LinkedIn, Instagram, and YouTube offer an opportunity to reach a massive audience of prospective employees and customers. However, social media also presents some serious risks for employers. 

We’ve all seen cringe-inducing examples of employee misuse of social media causing reputational harm to their employers, divulging confidential information, and exposing their companies to legal risk. One of the earliest incidents occurred in 2008, when several Burger King employees posted a video on MySpace of an employee taking a bubble bath in a restaurant sink. Since then, we’ve seen other examples of social media posts showing food being mishandled by employees at restaurant chains like Domino’s Pizza and Golden Corral. 

Corporate executives have also fallen prey to misusing social media and putting their companies in bad positions. The CFO of the Francesca’s Collections apparel company was fired in 2012 after he improperly communicated financial information on Twitter before the company filed its annual report to the SEC. Just last year, a Walmart employee alleged she was fired for divulging company secrets in a TikTok video she posted which documented her 17-hour shift. 

I recently hosted a national CLE webinar, “Social Media in the Workplace: What Could Possibly Go Wrong?,” where I explored considerations when assessing the risks associated with employee social media use, and the need to develop sound social media policies to mitigate those risks. 

Here are four important things for employers to consider in order to reduce potential problems when it comes to their employees’ use of social media: 

Review Social Media Policies

In light of the National Labor Relations Board's (NLRB) recent Stericycle opinion, which takes a much more employee-friendly approach to workers' rights to engage in protected concerted activity on social media, it is crucial for employers to review and update their policies regarding employee social media use. Broadly worded social media policies that restrict social media discussions about the workplace will be presumed unlawful by the NLRB if employees could reasonably interpret them as interfering with their concerted activity rights under the National Labor Relation Act. To avoid running afoul of the NLRB's standards, employers should ensure their social media policies are narrowly tailored.

Ownership of Social Media Accounts

It is important for companies to have clear policies regarding ownership of social media accounts used for business purposes. Social media is a valuable method to build customer relationships and develop business opportunities, which necessitates clear procedures to protect these company assets. Employees should acknowledge that any social media accounts created or used for business purposes are company property, not personal accounts. At the end of employment, employees should be required to forfeit login credentials to these accounts per company policy.  

Discrimination in Hiring and Firing

The hiring and firing processes can lead to discrimination issues if not handled carefully. Employers must be cautious to avoid discrimination against applicants or employees within protected classes like race, gender, sex, religion, age, or disability. For example, if a hiring manager inadvertently discovers an applicant's protected status through a social media search, and then declines to hire them, it could lead to a claim of discrimination. To avoid this, employers should have an independent reviewer conduct background checks and only report job-relevant information. Additionally, firing an employee for a discriminatory reason, even if other justified causes exist, can still expose the company to legal liability.

Monitoring Employee Social Media Use

While properly disclosed and authorized monitoring on company-provided devices is generally acceptable, unauthorized monitoring or accessing of employee personal social media accounts may implicate the federal Stored Communications Act (SCA). The SCA prohibits intentional, unauthorized access to electronic information. Although the SCA was enacted in 1986, many years before the advent of social media, courts have shown a willingness to apply the law to social media use. 

State Social Media Privacy Laws

An increasing number of states prohibit employers from requesting or requiring employees and job applicants to disclose social media account information like usernames, passwords, and other social media related information. Asking an employee or applicant to access their social media in the employer’s presence may be unlawful in some states. Complicating matters are exceptions to the prohibitions. Keeping abreast of state social media privacy laws is of utmost importance, but the laws don’t necessarily use the words “social media.” The Practical Guidance Social Media: Employer Access to Employees’ Accounts State Law Survey ensures timely notice of new social media privacy laws, what they cover, as well as the exceptions, regardless of how jurisdictions is refer to social media electronic communications. 

Social Media and Virtual Harassment

If an employer is aware of harassing behavior online, even from personal social media accounts, or if the harasser used company-provided devices, the employer may be liable. Discrimination, harassment, and social media policies should all be reviewed for consistency. Reporting misconduct should be encouraged, and action taken to stop the harassment. It must also be made clear that sharing of offensive or harassing materials is prohibited from company devices.  

These are just some of the considerations for workplace social media policies. For your convenience, all of the Practical Guidance workplace social media resources may be found in the Social Media in the Workplace Resource Kit. The kit includes practice notes, state law surveys, checklists, templates, and clauses covering all aspects of workplace social media concerns. 

Included in the resource kit, you can find “Social Media Workplace Issues and Best Employer Practices Checklist,” a LexisNexis Practical Guidance checklist written by a team of labor and employment attorneys at Mayer Brown LLP: Marcia E. Goodman; Michael Menssen; Elaine Liu; Radha D.S. Kulkarni; David S. Levine; and Sofia B. Orelo. It provides a comprehensive review of everything you should include or consider including in social media employment policies. 

The same authors also wrote “Social Media Issues in Employment: Counseling Employers on Key Social Media Issues,” a LexisNexis Practical Guidance practice note that goes into detail about the effect of employee social media use on employers and their brands, monitoring employee social media use, social media and virtual harassment, intra-company social media use, and ownership of social media accounts. 

When it comes to actually writing the policy, “Social Media Policies: Key Drafting Tips,” a practice note from Joseph Dominick Guarino at DLA Piper LLP, gives “how-to” guidance, that includes a sample social media policy for employers.  

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