Social media – particularly web-based social networking sites like Facebook, Instagram, Twitter, Pinterest and LinkedIn – have exploded in popularity in recent years. As of the first quarter of 2021, Facebook alone had 2.8 billion active monthly users, which would make it the most populous country in the world. About 1.84 billion of those users log on to Facebook in any given day. For years, it has remained the most visited site on the Internet. LinkedIn has approximately 740 million members and adds two new members every second. Twitter has 192 million active users who send an average of 500 million tweets per day. The popularity of social media is not limited to college students or to the newest generation of workers. As of May 2020, the majority of all Facebook users in the United States were 25-34 years old or older. Similarly, 38% of LinkedIn users are in that same age group, and they presumably recognize the value of this service in getting a job or establishing their careers. Those statistics mean that a large number of your employees are active on social networking sites whether you are aware of their activity or not. Surveys continually show that a high percentage of employees admit to visiting social media sites during work hours.
The explosion of social media brings a host of new workplace issues, both good and bad. On the good side, social media offers new and often affordable marketing opportunities. Social media also facilitates networking, recruiting, and professional connections, and allows businesses to stay connected to customers in new ways. On the bad side, social media can present some thorny workplace issues. The employer mindset can no longer be to ignore the presence and ubiquitous nature of social media. Rather, employers must understand the impact of social media on the workplace and employee relations and develop the appropriate strategies to manage that impact. This chapter addresses some of those issues and provides practical advice about what employers should do with respect to social media in the hiring, supervision, discipline, and firing of employees.
Having access to information on publicly-available websites and social networking sites presents some obvious potential benefits to employers. Accessing this type of information, however, also presents some dangers that may be less obvious.
Given the popularity of social media, many employers have turned to social networking websites and information on public websites as a way to recruit or to gain information about prospective and current employees. Per CareerArc, 91% of the employers use social media to recruit. In a study by the Society for Human Resources Management (SHRM), 43% of employers reported using Google or other search engines to screen job applicants, and 36% of the employers disqualified a candidate based on content uncovered on a social networking site. Other surveys have found that 73% of employers use social media to screen candidates, and 57% report that they are less likely to interview a candidate that they cannot find online.
According to one survey, more than half of the responding employers stated that they found content on social media that caused them not to hire a candidate. The following were the leading things candidates had done which caused them to be disqualified:
As a general matter, there is no legal prohibition on employers reviewing publicly-accessible information, such as information on public social networking sites or general public websites. Employers may want to review social networking sites to discover whether a job applicant’s use of social media reflects poor judgment, reveals information about illegal drug use, or otherwise contains postings that potentially could be embarrassing to the employer if the applicant were hired. For existing employees, employers may be interested in reviewing an employee’s use of social media to determine whether the employee has engaged in any inappropriate or damaging conduct, such as making harassing statements about co-workers, making defamatory remarks about the employer, or disclosing any confidential or protected information of a former employer.
As long as employers limit their review of social media and internet sites to those that are publicly accessible, no current law prohibits employers from reviewing publicly-available information about applicants or employees. At-will employers also have the right to terminate employees for no reason or for any reason that is not discriminatory or otherwise prohibited by law.
However, some information on the Internet is restricted. Privacy settings on Facebook and other social networking sites allow users to limit who can access their personal information. Employers should not have someone “friend” an applicant or employee on behalf of management in order to access this personal information. Not only could this have an adverse impact on employee relations, but it might open the employer to civil liability for invasion of privacy or other tort claims.
In looking at the use of social media in the employment context, it is helpful to start by looking at some of the basic legal limitations and duties applicable in this area for both employers and employees. Remembering these limitations and duties will help an employer evaluate both the appropriateness of disciplinary action for employee conduct in the use of social media and the appropriateness of the employer's own monitoring and responses to employee use of social media.
It is a basic principle of employment law that employers may not make employment decisions based on protected personal characteristics of an employee. (See Recruiting and hiring.) Just as employers cannot ask for information about such subjects as marital status, familial status, age, disability, or religion during a job interview, the employer should not seek that type of information by gleaning it from the Internet. An employer exposes itself to the risk of liability by becoming aware of personal information about a job applicant that may not legally be used in the hiring process. For example, reviewing a job applicant’s Facebook page may reveal that the applicant is disabled or otherwise show that the employee has some protected personal characteristic that the employer may not seek to know or consider in hiring. Reviewing social networking sites for existing employees presents this same issue. By doing these types of searches, one risk for employers is that potential or existing employees may claim that they were the subject of an adverse employment decision – such as not being hired or promoted – because the employer discriminated against them based on the employee’s protected characteristics that the employer learned from reviewing social media or public internet sites.
If employers elect to review social media as part of their hiring process, they should conduct such a review consistently for all applicants for a particular job, rather than selectively for only certain applicants. The EEOC has issued informal guidance regarding electronic resumes with video clips. It is available at:
The EEOC guidance document notes that it is not illegal for an employer to learn the race, gender, ethnicity, or disability status of an individual prior to an interview. Nevertheless, the EEOC strongly cautions that the knowledge about race, gender, ethnicity, or disability status of an individual at this stage increases the risk of discrimination or the appearance of discrimination. If an employer learns about such information, it should focus on the person’s qualifications for the job.
Employers should be cautious about potential discrimination claims for targeting certain employees for review of social media use. If an employer elects to review the social networking site for a particular employee because of a belief that the employee has engaged in some misconduct relating to social media, the reasons for that belief and the selective search should be documented to avoid potential discrimination allegations. Employers may not access an employee’s password protected site without specific authorization from the employee to do so. Employers should also be careful about asking other employees who have access to a password-protected site to gain access for the employer. These actions could violate the Stored Communications Act (see Privacy rights).
More than 20 states have passed laws regarding employer access to current and prospective employees' social media accounts. Although Minnesota is currently not one of those states, legislation is pending and, if passed, Minnesota would join the ranks of states prohibiting such inquiries. Examples of prohibited conduct include:
Employers also should be aware that employee social networking and blogging may involve speech protected under the National Labor Relations Act (NLRA). One right protected under the NLRA – in both union and nonunion settings – is the right of employees to engage in concerted activity relating to the terms and conditions of employment. If employees are posting videos or using social networking sites or blogs to discuss issues relating to their work environment or conditions with other employees, then that speech is protected and may not be the basis for adverse employment decisions. There are reported decisions of employers having been found liable for violating the NLRA for disciplining and discharging employees for postings on public websites that were found to be protected concerted activity under the NLRA. As a result, employers should exercise caution in making any employment decisions based on employees’ use of social media to discuss workplace issues when that use involves multiple employees.
Even when no employee has been denied employment under a company’s social media policy, the NLRA may be the basis to invalidate a policy that expressly prohibits employees from exercising their rights under the NLRA or would reasonably be interpreted as doing so. Examples include:
Employers also should be mindful of privacy rights in reviewing social media. Many states, including Minnesota, recognize a generalized common law cause of action for invasion of privacy. Given the fact that the Internet crosses borders so easily, it is always possible that employees or applicants may be able to find some jurisdictional basis to claim that an employer violated their privacy rights under the laws of some other state. The general test for privacy violations is whether the conduct was an intentional and unauthorized intrusion into private matters that would be highly offensive to a reasonable person.
As a general rule, no invasion of privacy occurs when an employer simply observes information that is “out in the open” or publicly available. Employers, however, may violate an employee’s privacy interests if the employer intrudes on an area in which the employee may have a legitimate expectation of privacy. For that reason, employers should have clear policies reserving their rights to monitor use of employer-owned electronic devices or networks and should enforce those policies consistently. Employers also should limit any review of social media or Internet sites to only those sites which are publicly available.
In addition to privacy interests of employees, employers should limit any searches to publicly-available sites to avoid violation of federal law. The Stored Communications Act prohibits third parties from intentionally accessing electronically-stored communications, including emails or entries on private websites, without proper authorization. There are reported cases of employers facing liability for intentionally accessing employees’ private social networking accounts without authorization. (See Privacy rights.)
Employers should be careful not to react to an employee’s right to report a violation of law on social media sites. Most states, including Minnesota, have strong whistleblowing laws that protect an employee’s ability to report a violation of law.
Employees also are constrained by legal duties and limitations in their use of social media. Employees generally owe their employers certain basic duties. When an employee’s utilization of social media violates any of these duties, disciplinary action may be warranted. Although this list certainly is not exhaustive, some of the primary duties that employees owe their employers include the following.
It is a longstanding rule that employees owe their employers a general duty of loyalty. Actions that violate this duty – such as acting against the interests of the employer or disparaging the employer on social networking sites or in personal blogs – may be valid grounds for disciplinary action in many circumstances. Employees should exercise caution, however, because some types of employee speech – even if disparaging to the employer – are protected and may not form the basis for any disciplinary action. For example, employees have the right to protest employer actions or policies when the employees reasonably believe the actions or policies violate employment laws (such as, anti-discrimination or wage and hour laws) or safety laws. As noted earlier, the NLRA also protects the right of employees to engage in concerted activity relating to the terms and conditions of employment.
An employee’s duty of loyalty includes a duty to protect confidential information of the employer. Many employers reinforce this general rule with express policies and even contracts prohibiting employees from disclosing confidential information. If employees disclose confidential information from their workplace on social network sites or personal blogs, disciplinary action may be warranted and, indeed, may be necessary to minimize potential liability for the employer for such disclosures. As an example of when disciplinary action is necessary, employers who wish to enforce their written agreements in court by filing a restraining order must show that they took reasonable steps to protect their confidential information. Evidence that the employer disciplined employees based on breaches of confidential information is an example of such a reasonable step.
Trade secrets are a particularly important type of confidential information for many businesses. Because of the importance of trade secrets, employers frequently have specific policies or employment contracts prohibiting trade secret disclosure. Revelation of trade secrets in the course of employee social media use is another area not only warranting employee discipline but, in some cases, mandating it to ensure continued trade secret protection. A policy providing for disciplinary action against any employee who disclosures a trade secrets will be helpful evidence when an employer wishes to obtain a restraining order.
Most discrimination laws prohibiting discrimination, harassment, and retaliation against employees apply not only to employers but also to other employees. An employer’s tolerance of such discriminatory conduct by employees, of course, may also lead to liability by the employer for the discriminatory conduct. Such liability may attach if an employer is aware of the use of social media, or of any other electronic communication, such as email, or text messaging, by employees to discriminate or harass other employees. As a result, an employee’s use of social media or other forms of electronic communication to harass or express discrimination against other employees is another area in which employers likely will want and need to take disciplinary action.
Even more serious than harassment or discrimination are threats of violence by employees against others in their workplace. If an employee is using social media as an outlet to express threats against co-workers or threats of workplace violence, employers should take immediate action.
Although the National Labor Relations Act (NLRA) protects employees in their right to complain about terms and conditions of employment, the statute is limited to employees who engage in concerted activity for mutual aid and protection. Rights under the NLRA are collective rather than individual. Social media postings will not be protected unless they relate to the individual's terms and conditions of employment and seek to involve other employees in issues related to employment. Complaints vented about the employer must be engaged in with or on the authority of other employees, and not solely by and on behalf of the employee in order to receive protection under the NLRA. Individual gripes, even about a supervisor, are not legally protected by the NLRA. If those gripes concern some violation of a law, however, they may be protected under state or federal law governing whistleblowers. See Termination, for a discussion of whistleblower rights.
As is often the case with employment issues, employers can best protect themselves from the potential risks and liabilities involved with social media by adopting sound policies and utilizing best practices. Although each employer should tailor a policy for the unique circumstances of its workplace and should consult legal counsel in uncertain situations, the following list provides some basic guidelines that employers should consider adopting.
Given the prevalence of social media use, it is wise for most employers to adopt written policies for employee use of social networking and internet sites. Prohibition of social media use generally is not practical (and can run afoul of the NLRA), but employers should set out a list of prohibited conduct related to social media and blogging. Policies should remind employees of their duties to refrain from disclosing confidential or proprietary information, refrain from harassing or derogatory comments about co-workers, customers, or competitors, refrain from posting company logos, images, or any comments suggesting that the employee is representing the employer in any way or engaging any conduct that potentially could harm the employer’s reputation or interests. The policy should be narrowly tailored and should reflect that it is not applicable to activities protected by the NLRA. In addition, employers can adopt a policy that no employee should ever be pressured to “friend” or otherwise connect with a co-worker via social media. Such a rule is sufficiently specific in applying to pressuring or harassing co-workers that it will not be read as restricting employees from attempting to contact colleagues for the purpose of engaging in protected concerted or union activity.
Time, place, and manner restrictions are also advisable. Such restrictions can include a prohibition on the use of company equipment to access certain social networking sites, a prohibition on posting to such sites during times the employee is supposed to be working, and the like. In addition, employers can lawfully block access to certain social networking sites from the company’s internet server. However, when employees spend a considerable part of their time using a computer, the Internet, or email to be productive, overbroad restrictions on their use may be unlawful.
Employers also should adopt written policies that state clearly whether the employer reserves the right to monitor employer-owned or employer-provided electronic devices or networks. Among other things, employers may want to reserve the right to monitor employees’ use of the Internet, instant messaging, email, or text messaging on employer-owned or employer-provided devices. Employees also should be reminded that emails and instant messages are business records that may be used in litigation, audits, and investigations. Employers that already have such policies should consider reviewing their current policies for needed updates. The law in this area has changed dramatically over the last few years and employers should make sure that their policies reflect the current trends in the law.
Employers also should adopt clear guidelines about permissible use of employer-owned electronic devices. For example, an employer may want to adopt policies prohibiting employees from accessing pornography or other offensive sites from the employer-owned electronic devices. Policies requiring respectful and professional language in all electronic communications also are generally wise. Employers should warn employees that violation of employer policies will lead to discipline, up to and including termination of employment.
As part of a global electronic communication policy, an employer should also include information restricting the use of text messages during the work hours. A well-drafted policy will convey the same restrictions that apply to social media sites regarding not sending sexually explicit emails to co-workers or clients, anti-discrimination warnings, warnings against texting or tweeting about clients, coworkers, sensitive company information, and trade secrets.
Like any other employment decision, employers should thoroughly investigate before making decisions based on social media postings and give employees or applicants an opportunity to tell their side of the story. Social media and pictures may be easily manipulated to portray a person in false light. As a matter of fairness and to avoid unnecessary exposure to litigation, employers should make sure they are relying upon accurate information and correctly interpreting social media before taking adverse action.
In addition to policies regulating employee use of social media, employers also should follow best practices in using social media in the employment context.
Electronic communications – including emails, blogs, text messages, posting on social media sites, and persona websites – are more and more frequently becoming important pieces of evidence in litigation for both employers and employees. Be aware of the potential for such materials to be used in litigation and use caution in your own electronic communications.
Connection to outside activities through Internet, smartphone, email, and other means has become increasingly pervasive in the workplace. Many employers are working to limit personal activities by employees on company time. Employers have long had a tradition of providing break time to employees during which personal business can be conducted. Some employers have accepted that employees will be involved in personal business to some extent during work time. Several studies show that the distractions of smartphones and the variety of communications available on them decrease productivity significantly by taking employees off task. While an occasional short phone call or text message should not be the basis for discipline, an employer can adopt policies that restrict personal activities at work.
In general terms, both an employer and employee owe a duty of good faith and fair dealing to the other. Using that obligation as a basis, employers can require employees to focus on company business. A few courts have dealt with adverse employment actions based on personal activities, including one court that determined that an employee’s conduct in spending approximately 15 minutes per day on a personal home business amounted to a breach of loyalty to the company and was sufficient grounds for termination.
Employers that look to manage the situation should provide employees with clear expectations of conduct and define employee activities within written job descriptions. But a common sense approach is warranted since most workplaces have some level of distraction that affects productivity. Of course, if safety is an issue or if job duties require precise action or close attention, then prohibiting any personal business may be essential.