Threading the Social Media Needle

At the height of the COVID pandemic in 2020, a business client came to labor and employment attorney Kyllan Kershaw with a dilemma: Employees were posting support for Black Lives Matter on social media, tagging the company, and nudging it to support the movement. When the boss chose to steer clear of the issue, he was tagged in an unflattering post about white power.

“We were able to kind of thread the needle,” says Kershaw, of Littler Mendelson in Atlanta. “The latter post actually did violate [the company’s] EEO policy, so they were able to do the appropriate thing about that post.” While that post was removed, the original comments about racial matters and BLM, though heated, were protected under Section 7 of the National Labor Relations Act, which allows workers to band together, including on social media, to bring about changes in the workplace. 

Social media can boost a company’s bottom line through quick, widespread marketing, but it can obviously create complications. “To reap the larger audience, you have to understand the tedious requirements of social media,” says Atlanta labor and employment attorney Lisa Bowman. “You have to understand algorithms, which requires a lot of study and detail in terms of your posting and use of certain language and hashtags. In addition, companies must be aware that once they put their businesses on social media, they are exposed to immediate and direct negative feedback.” 

In the past, employers held tighter control over employee posts on Facebook, LinkedIn and X (formerly known as Twitter). Now, says Kershaw, “The most common question is what to do when an employee has made a post on social media, about either a coworker or a supervisor, and it’s negative or disparaging. The employer wants to know: Can we legally take action on this post?”

The answer to that question often depends on the content. “Private employers can no longer interfere with concerted activity by employees, and that includes employees griping online about terms and conditions of employment,” Bowman says. 

But as with the example above, misuse of social media, such as threats or harassment that violates Equal Employment Opportunity Commission policy, doesn’t have to be tolerated.

Resist the temptation to monitor your employees’ social media accounts, lawyers say; you must first get consent, either individually or through established company policy. The same goes for potential new hires. “I would recommend just not doing it,” Kershaw says. “In this environment, where it’s hard enough to recruit talent, asking employees to sign off on having their social media examined and monitored I doubt will go over well.”

Kershaw recommends designating one employee, perhaps from public relations, to review posts that tag the company. “Where you can really run into problems,” she adds, “is if you have supervisors just randomly searching posts of people they don’t like.”

Discourage your managers from friending/following other employees—this can create big headaches for everyone—and expect them to set a good example rather than invite negative conversations through their own posts. And remind your workers of the obvious: If you post it, they will see it. 

“We are no longer in a place where you can post something on social media and think no one else is going to see it, or it won’t get back to whomever the post is about,” says Kershaw. “Recognize that employees have rights, but encourage them to be mindful.”

Many problems can be avoided with a solid social media policy that covers a broad range of topics: rules about using it during work hours, revealing trade secrets online, and, of course, spreading discriminatory comments and harassment based on a protected characteristic. Be prepared to enforce the plan equally, says Kershaw.

An attorney can help you shape your social media policy and keep it from conflicting with changing laws.