Social media and employment

June 12th, 2018


Social media, or the process of interacting and sharing ideas in a virtual setting, has exploded over the past 5 years. The popularity of sites such as Facebook, Twitter, and Instagram is unquestionable. But how does this new mode of communicating impact employment? Probably in more ways than most employers realize.

In the hiring process

If there was a way to know more about an applicant's demeanor, tastes, and personality without asking them, you would do it right? That thought has led many employers to Googling potential hires, a practice with some clear benefits to employers, but also with some dangers that may be less obvious.

While there is no law prohibiting an employer from viewing publicly available information, it is illegal to make employment decisions based on the protected, personal characteristics of an employee, including race, age, marital status, disability, or religion, all information an employer can be exposed to when investigating social media.   For example, reviewing a job applicant’s Facebook page may reveal that the applicant is disabled, information that might not be known to the employer.

Does this mean an employer should not use social media to investigate applicants? Not necessarily. Employers can have a third party, who is not in charge of making the decision to hire, report to them on any issues found in an employee's Internet presence.

Employee social media rights

While the National Labor Relations Act (NLRA) primarily applies to unionized employees, there are some protections under the Act’s Section 7 that give non-unionized employees rights concerning social media. Section 7 protects the concerted activity of employees relating to the terms and conditions of employment. In the last few years the courts have found this protection to cover employee use of social media as a platform to discuss employment issues. Which is all a fancy way of saying “you can’t discipline or terminate an employee for discussing work related issues online.” For example, if one employee posts on their Twitter that it is unfair they have to work a double shift while other employees do not, they are protected under Section 7 and can’t be punished.

Limiting what employees can and cannot say

While employers can’t stop employees from participating in social media, they can enact policies to outline what use is acceptable. In general employers should use policies that ban employees from:

  • disclosing confidential or sensitive company information
  • behaving in a way that would violate the company’s anti-discrimination or harassment policies
  • making obscene or physically threatening comments about co-workers, customers, vendors, suppliers, and members of management
  • using any language, or use of company logos, that suggests the employee is representing the company.

Additionally, employers should make sure to enforce these policies evenly and document any actions taken.

On the clock use of social media

A recent survey shows that over 20% of employees admit to using social media during working hours, and those are just the ones who were being honest! This practice poses a lot of issues for an employer, with loss of productivity possibly being the biggest. With the prevalence of smart phones and tablets, banning social media use in the office can be difficult. Employers may chose instead to install a policy geared at keeping the use reasonable. Here is an example of a policy which gives the employer the right to determine what use of social media is acceptable during work hours.

With the use of social media among all demographics constantly rising, employers should be sure to protect themselves against these common trouble areas.