Social Media and the Workplace: A Balancing Act

Marcellus originally presented this topic at Phelps’ Mississippi Labor and Employment Seminar in 2024.

Social media in the workplace: how should it be used to effectively balance employees' rights with employers' business interests?

This article will cover:

• Potential violations of the National Labor Relations Act (NLRA) for union and non-union employers relating to social media use.
• Using private social media accounts for business purposes.
• Using social media to make hiring decisions.
• Limitations on employers’ ability to monitor social media use.
• How employees’ social media use can potentially impute liability to employers.
• Best practices for creating and updating social media policies and
• Artificial intelligence (AI) in the workplace and what you need to know.

The most common issues that arise from social media use in the workplace are:

• Disclosure of confidential, proprietary or sensitive organizational information.
• Distractions and decreased productivity.
• Cybersecurity risks related to using social media on employers’ devices.
• Posts disparaging supervisors or other co-workers and
• Posting inappropriate conduct that negatively reflects the organization.

Potential National Labor Relations Act Violations

The National Labor Relations Act (NLRA) is a federal law that protects the rights of employees to self-organize, form, join, or assist labor organizations, and bargain collectively. It applies to both unionized and non-unionized private sector employers. But it does not cover governmental employers, religious organizations, employers who exclusively employ agricultural workers, employers subject to the Railway Labor Act and domestic worker employers.

The National Labor Relations Board (NLRB) enforces the NLRA and has jurisdiction over most federal contractors and private sector employers with a “specified gross annual volume of business,” which varies by industry.

Section 7 of the NLRA protects three categories of employee activities:

• The right to self-organization: to form, join or assist labor organizations.
• The right to bargain collectively through a representative of their own choosing.
• The right to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.

Section 8(a)(1) of the NLRA makes it an unfair labor practice for an employer to interfere with, restrain, or coerce employees in exercising their Section 7 rights.

Importantly, “supervisors” and “professional employees” are not covered by the NLRA. A supervisor is defined as someone with the authority to perform certain managerial functions on behalf of the employer (such as hiring, firing, and disciplining employees) and whose job requires them to frequently use independent judgment. Professional employees are individuals who perform work that requires advanced knowledge and education.

The NLRB has offered guidance on social media use in the workplace. The guidance reinforces employees’ rights to use social media to improve their working conditions. Federal law protects their right to engage in not only union activity, but also “protected concerted activity.”

But employers are not left defenseless. Social media activity is not protected if the employee says things about their employer that are “egregiously offensive” or “knowingly and deliberately false” or if they publicly disparage their employer’s products or services without relating their complaints to any labor controversy.

Using Private Social Media Accounts for Business Purposes

Many employees hold positions that require them to use social media for business purposes, such as marketing professionals and brand ambassadors, public relations specialists and recruiters.

According to a 2018 study by Management Recruiters International, 35% of employers use social media to evaluate potential candidates. But this practice can lead to missing out on talent if candidates minimize their social media presence to avoid scrutiny.

An employer may not rely on a candidate’s protected characteristic that the employer discovers through social media, including race, gender, or disability, to make hiring decisions, per the Equal Employment Opportunity Commission (EEOC) guidelines.

Employers should consider adding include an explicit rationale in their social media policies explaining why social media is used in the hiring process and clearly outline the weight or impact of social media findings in the decision-making process.

There is no play-by-play blueprint as to when social media is appropriate for screening a candidate or how it can be used for other business purposes. Employers should always consider the totality of the circumstances, which encompasses a detailed analysis on a case-by-case basis. For this reason, it is best to engage legal counsel when creating or updating a social media policy.

First Amendment Considerations for Public Employers

Public employees do not lose their First Amendment rights by virtue of their employment.  But their speech can be subject to certain restrictions if the employer can show that its interests outweigh the interests of its employees.

Courts apply the “strict scrutiny” standard of review for policies that regulate the content of an individual’s speech.  This is the highest burden for a governmental employer to justify restrictions on employees’ speech, which includes policies regulating employees’ social media posts. The strict scrutiny standard provides that such policies must serve a “compelling” government interest by using the “least restrictive means.”   

If an employee asserts a First Amendment claim against his or her employer as a result of that employee’s social media post, the court must first determine whether the post relates to a “matter of public concern.”  Matters of public concern are protected speech, but posts relating to an employee’s personal interests are not protected speech.  Speech involves a matter of public concern when it involves an “issue of social, political or other interest to a community.”

In Liverman v. City of Petersburg, the Fourth Circuit explored the distinction between matters of public concern and purely personal interests in the social media context.  In that case, the City of Petersburg implemented a policy that prohibited employees from making social media posts that could discredit or reflect poorly on the city or its personnel.  Two veteran police officers were reprimanded for making Facebook posts criticizing the city’s promotion practices.

The Fourth Circuit found that the social media policy was unconstitutional both on its face and as applied to the officers because it was overly broad and infringed on their First Amendment rights to address matters of public concern.

Monitoring Social Media Use

There are limits to employers' ability to monitor social media use. At least 27 states have laws regulating this practice. These laws often prohibit employers from requiring employees to share their social media usernames and passwords, except for company-based accounts or when used on company devices.

Most states also prohibit employers from requiring employees to add other members of the organization to their social media accounts. Although no federal law expressly prohibits employers from monitoring social media use, employers should be aware of the Federal Communication Storage Act, which limits the extent to which they can access employees' electronic communications.

Employers should include disclosures in your social media policies about monitoring for productivity, confidential information, and bandwidth usage.

Potential Liability Issues Arising from Social Media Activity

In today’s virtual world, the “workplace” transcends the physical space that employees occupy, and can sometimes extend to social media.  As a result, an employer can potentially be liable for creating or fostering a hostile work environment online. 

In Okonowsky v. Garland, a psychologist for a federal prison filed a federal lawsuit against her employer after it failed to take corrective action against another employee who engaged in inappropriate social media conduct.  Specifically, the psychologist learned that a co-worker used a personal social media account to post sexually offensive content about her and other female co-workers. 

The Ninth Circuit held that the prison was liable under Title VII for fostering a hostile work environment.  In reaching its decision, the Court emphasized “the ubiquity of social media and the ready use of it to harass and bully both inside and outside of the physical workplace.”

Artificial Intelligence (AI) in the Workplace

AI can enhance productivity by generating documents, performing research and aiding in marketing and communications. But it also poses significant risks, including potential data breaches, intellectual property concerns and potential bias in decision-making.

Employers should monitor AI use and implement strong acceptable use policies. These policies should require employees to review AI-generated data for accuracy and to always use their professional judgment.

Employers should also consider prohibiting employees from logging into personal AI accounts during work hours or using company devices to ensure proper monitoring and control.

Best Practices for Social Media Policies

• Balance Business Interests and Employee Rights: Ensure policies balance the business interests of the organization with employees' rights to advocate for better working conditions.
• Apply Policies Equally: Apply social media policies equally among all employees to avoid claims of discrimination or favoritism.
• Prohibit Disclosure of Confidential Information: Clearly prohibit the disclosure of confidential, proprietary, or sensitive information, such as trade secrets and client information.
• Include Clear Rationale for Social Media Use: If using social media in the hiring process, include a clear rationale explaining its purpose and how findings will be weighed.
• Consult Legal Counsel: Engage legal counsel when creating, updating, or applying social media policies to ensure compliance with relevant laws and regulations.
• Monitor Productivity and Confidential Information: Include disclosures about monitoring social media for productivity, confidential information, and bandwidth usage.
• Address Hate Speech and Discrimination: Include provisions that prohibit hate speech, discriminatory, or harassing behavior online, reinforcing the organization's commitment to a respectful and inclusive workplace.
• Transparency in Monitoring: Be transparent about the extent and reasons for monitoring employees' social media use.

Conclusion

It is important for social media policies to carefully balance the rights of employees with the interests of employers when it comes to social media use in the workplace. Transparency, fairness, and compliance with legal guidelines are crucial.

Employers must navigate a complex landscape of legal requirements, employee rights, and business needs in regulating social media in the workplace. By implementing best practices and consulting legal counsel, employers can create effective social media policies that simultaneously protect their interests and employees' legal rights.

Please contact Marcellus D. Chamberlain or any member of the Phelps Labor and Employment team if you have questions or need advice or guidance.