Social Media Issues in the Workplace
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Social networking has literally exploded over the past few years. Names such as LinkedIn, Facebook, Twitter, and many others are becoming common household names. Many companies encourage their employees to use such sites to increase the employees’ networking community. Many companies are finding, however, that employees may say too much on social networking sites – like criticizing a supervisor, engaging in on-line bullying of a co-worker, disclosing a trade secret, etc.
Can you or should you discipline? Courts and regulatory agencies are just beginning to address these important issues. The National Labor Relations Board has agreed to consider whether an employer appropriately terminated an employee for criticizing her supervisor on Facebook. On the other hand, can you use such sites for your own purposes like checking out an applicant’s profile to see if there are any discrepancies in the resume the applicant submitted to your company? Attend this webinar to understand what are the legal issues that can come up if the social networking problem is not handled properly? What the regulatory agencies are saying about it? How to write a policy addressing this problem?
Agenda:
- What is social networking and why is it an employment/labor law issue?
- How your use of social networking in the recruiting process can lead to a discrimination lawsuit.
- Why your employees’ use of social networking – both on and off duty is a human resource concern.
- How your handling of a social networking problem can lead to a discrimination claim.
- How your failure to handle a social networking problem can lead to other legal problems such as potential violations of HIPAA, an harassment claim, or even a violation of SEC regulations.
- What the NLRB is saying about employees’ social networking.
- Do employees have any privacy rights in what they say on social networking sites?
- State laws regulating employer use of employees’ social networking
- How to write a policy addressing social networking concerns.
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Susan Desmond
Susan Fahey Desmond is a partner with McGlinchey Stafford, PLLC which has offices in 33 states across the country. She has been representing management in all areas of labor and employment law for over 35 years. A noted author and speaker, Susan is listed in Best Lawyers in America an [...]
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This webinar received a total of 2 survey responses. Attendees have given an average rating of 5.0 stars out of a possible 5, reflecting the quality and value of the content presented.
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Frequently Asked Questions
Employers can discipline employees for social media activity, but the legal landscape is nuanced and evolving. The National Labor Relations Board (NLRB) has weighed in on employees' rights to engage in concerted activity — including online complaints about working conditions — which may be protected even if disparaging to management. Discipline may be appropriate for posts that disclose trade secrets, violate HIPAA, constitute harassment, or damage the company's reputation outside the bounds of protected activity. However, a poorly crafted social media policy or hasty disciplinary decision can expose employers to discrimination or retaliation claims. Before taking action, HR professionals should consult legal counsel, review the specific content in context, and ensure any discipline is consistent and documented. Aurora Training Advantage's webinar on social media issues in the workplace provides the compliance framework and policy guidance HR teams need to navigate these complex situations confidently.
Using social media profiles to screen job applicants creates significant legal exposure for employers. When you view a candidate's social media account, you often learn protected information — age, race, religion, disability status, national origin, or family situation — that cannot lawfully influence hiring decisions. If a candidate is rejected after you viewed their profile, proving the decision was not influenced by protected information is difficult. The EEOC and courts have increasingly scrutinized social media screening practices in discrimination claims. Best practices include using a third-party screener who filters out protected information, applying screening criteria uniformly, and documenting hiring decisions thoroughly. Organizations should build clear policies around when and how social media may be reviewed during the recruiting process to minimize legal risk and ensure fair hiring practices.
A comprehensive workplace social media policy should address several key areas: what employees may and may not post about the company, colleagues, and clients; expectations around confidentiality and trade secrets; guidelines for personal use during work hours; rules on identifying oneself as a company employee online; and procedures for reporting inappropriate online conduct. The policy should comply with NLRB guidelines by not prohibiting protected concerted activity. It should also address state-specific laws, which vary significantly — some states restrict employers from requiring employees to share social media login credentials. Clear policies reduce ambiguity, help HR enforce rules consistently, and provide documentation in the event of a dispute. Regular policy updates are essential as platforms and regulations continue to evolve rapidly.
The question of employee privacy on social media is actively being shaped by courts, regulatory agencies, and state legislatures. Generally, employees have limited privacy expectations for public social media posts, but private or restricted posts present a more complex picture. Several states have enacted laws prohibiting employers from demanding access to employees' personal social media accounts. The NLRB has found that certain personal posts about workplace conditions may be protected concerted activity under federal labor law, even when made on personal accounts and off-duty. Monitoring or accessing employees' personal social media without consent can trigger privacy claims or labor law violations. A well-designed social media policy clarifies boundaries without overreaching into legally protected activity, protecting the organization while respecting employee rights.
Social media posts by employees can inadvertently or intentionally disclose information protected by federal regulations. In healthcare settings, an employee posting about a patient's condition or treatment — even without using their name — can constitute a HIPAA violation if the individual could be identified. In financial services, employees posting non-public information about clients, deals, or company financials can trigger SEC enforcement actions. Even seemingly innocuous comments about business performance or upcoming products can cross regulatory lines. Employers in regulated industries have a heightened duty to train staff on what constitutes protected information, monitor for potential disclosures, and include specific guidance in their social media policies. Proactive compliance training and clear policy language significantly reduce the risk of costly regulatory penalties and reputational damage.