Managing the Legal Risks of Social Media Inside and Outside the Workplace

Social media is an important recruiting, sales, and marketing tool for many businesses. To use social media effectively while avoiding legal issues, employers should review their social media policies and practices.

This article provides an overview of managing the risks of social media for employers. Many employment and labor laws vary by state and industry. For legal advice about social media policies under your state laws, contact a local employment law attorney.

Social Media’s Impact on the Workplace

“Social media has had a profound impact on the workplace,” says Erinn Rigney, an employment law attorney at K&L Gates in Chicago. “Fifteen to 20 years ago, people had a different idea of what work meant. They would show up at an office building, complete their tasks, and leave for the day. Work was typically not on their minds when they went home, and they certainly weren’t communicating with work through emails, phone calls, text messages, or personal social media accounts.”

Now, social media is a way for many workers to bring work home with them. Employees can communicate with one another through private and work accounts. Businesses should consider all aspects of social media inside and outside the offices when developing workplace policies.

Legal risks of social media can arise even before the employment relationship begins. For example, job ads on social media must comply with state and federal employment laws. Having the wrong language in a job posting could expose an employer to employment discrimination laws.

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Company Policies and Employee Use of Social Media

Employers face many significant risks with social media communications. Possible legal issues for employee social media use include:

• Sexual harassment
• Creation of a hostile work environment
• Defamation from personal employee posts
• Intellectual property threats
• Reputational damage
• Employee privacy laws

“Unsanctioned [social media activity] can bring up many different issues as to where [sexual harassment] can occur in the workplace,” Rigney says. “Even when off-site, if it’s a communication between co-workers or a supervisor, there is the possibility for harassment to occur, even through social networks. Business owners could be liable even if the two parties weren’t in the building or communicating during normal business hours.”

There are issues concerning the National Labor Relations Act (NLRA). Employees are allowed to engage in protected concerted activity, like labor organizing. Company policies that attempt to limit what employees do on their own time may violate federal statutes. The National Labor Relations Board (NLRB) investigates claims of NLRA violations.

Online and social media access carries security risks for companies. Employee computers and smartphones are vulnerable to common security threats. Online threats include phishing, malware, and lost or stolen devices. Clicking on a scammer’s social media link can give scammers access to sensitive information or trade secrets.

“Avoiding mistakes takes a well-drafted social media policy, as well as mandated training on social media use and security — especially for tech companies, sales, and startups that require the use of social media or social media marketing. [Workplace sexual harassment training is also essential] and has been very big since the #MeToo movement,” says Rigney.

Tips for Crafting an Effective Social Media Policy

Have a social media policy tailored to your industry. Your social media policies may look different depending on your online presence. A factory that doesn’t use social media will have very different policies than tech startups.

“It’s important to take stock of your workforce’s tech literacy level,” says Rigney. If you have a bit of an older workforce, they may need more of an explanation of what social media’s purposes are and why privacy settings are important.

Those who have not grown up with social media sites as a central part of their lives may need a primer on social media accounts. On the other hand, take into account the younger workers’ affinities and abilities with social media when writing policies.

“Each company is different, so it is difficult to speak on specifics of what each social media policy should contain,” Rigney says. “If this is a public company versus a private company, there will be different considerations because there are federal disclosure laws under the SEC that may be violated by a social media post of [confidential information], whereas a small local business probably doesn’t have those types of concerns.”

Social Media and Hiring Decisions

If you are responsible for hiring new employees for your company, you want to find the very best potential candidate for the job. In the interest of screening out potential misfits, it has become an embedded part of our culture to look at someone’s social media accounts. However, trolling social media may not give you the best work-related information and could actually cause employment law problems.

“I’m always trying to explain to recruiters who are hiring that you don’t necessarily want that social media information,” says Phoenix employment law attorney Julie Pace. For example, you may learn information that would give rise to a discrimination claim. “If you learn the job applicant has a health issue or they’re in a recovery program for an addiction, then it may be hard to get that information out of your head in making decisions.”

LinkedIn is the social media platform for professional networking and interaction. This sets it apart as a great tool for learning more about a job candidate. Still, however, Pace is cautious: “Some people put their LinkedIn profile right on their resume, so that may be an invitation to look at it. It’s not a personal social media site, but still, it’s safer for employers to get explicit consent.”

Another option for looking into a candidate’s history is to do a background check. An individual must give their consent to have a background check run on them. They also get notice of what, if anything, comes up in the search. “By law, you have to give notice so they can go fix it if the service doing the background check has it wrong,” says Pace. “It might be under the wrong name, for example. Lots of people don’t know that this notice is a legal requirement, and this can be the basis of a lawsuit.”

Getting Legal Counsel on Social Media Policies

An employment lawyer can give you legal advice on employees’ rights and social media policies. If you’re an employer who allows or encourages employees to promote products and services on social media platforms, contact an experienced employment attorney in your area.