When it comes to social media, in a lot of ways we’re in uncharted territory. On the one hand, Facebook has 214 million users in America, and Twitter has 67 million American users. This quickly shows us that a massive number of us have some degree of an online presence. On the other hand, a growing number of companies have some sort of social media policy, but occasionally that policy can clash with employment law.
Sure, there are some things that should be glaringly obvious. Employees shouldn’t share too much information about their jobs, potential candidates should be wise about the kinds of things they post, that sort of thing. But legal gray areas exist sometimes when social media overlaps with your company’s policies. We’ll talk about a few of those gray areas today, and offer tips to make things a little clearer.
- Social media has become an enormously useful tool for recruiting candidates, along with checking out the backgrounds of people applying and current employees. But employers need to tread with caution since social media can provide information about a person’s religion, sexual orientation, disability status, or other kinds of “protected category” information To avoid dealing with a potential discrimination suit, this kind of information should be avoided if at all possible. Try assigning a person who is not a decision maker to screen social media profiles prior to interviews.
- There’s a reason that inappropriate comments, racial jokes, and sexual advances are not allowed in the workplace. Regardless of intent, they can create a hostile work environment. The same can be true if harassing or offensive material exists on social media sites, and you have an obligation to investigate. But remember that you need to be aware of laws limiting access to non-public content that’s posted online. Those laws won’t be applicable if the content is either publicly available, or your employee voluntarily provides you access to the social media in question.
- Let’s say you have an employee has used social media to vent over a co-worker, supervisor, or company policy that they aren’t happy about. You might wonder if you can discipline or terminate them for the posting. Bear in mind that, as an employer, you have the right to do something if confidential information is shared, if posts are discriminatory, harassing, or contain threats of violence. However, the National Labor Board has strongly advocated for social media postings that can be protected under federal labor law. If there are social media issues, the smart move is to discuss the situation with counsel before making a decision or taking any kind of action.
- So what should your company’s social media policy say? It should be as specific as possible regarding what can and cannot be posted. Language that’s too broad or policies that are too vague can discourage employees from talking about work conditions and other subjects protected under labor laws. Your policy can simply discourage any social media use during work hours, and you can remind employees not to expect any degree of privacy when sending messages or postings with company-owned networks and devices.