Executive Summaries » How To Navigate The Treacherous World Of Social Media

How To Navigate The Treacherous World Of Social Media

June 24, 2015

Widespread employee use of Facebook, Twitter, LinkedIn and other social media has drawn the attention of both the NLRB and the EEOC, and employers need to be careful about their policies in this area.

For example, employers cannot prohibit, terminate, or discipline an employee for using social media to complain about working conditions if it’s done on behalf of others, if other employees join the discussion, or if it can be construed in any way as “protected, concerted activity.” But comments that are sufficiently outrageous or profane won’t be protected. The authors provide examples of each.

Another problematic area involves potential discrimination claims and information related to protected status. Although most employers understand this kind of information cannot be solicited during the hiring process, few understand that uncovering it on social media sites, even inadvertently by way of photographs or birth date information, may be viewed as doing just that. If it can be shown it had access to the site, the employer may be forced to prove a negative – that it had knowledge of the information, but did not use it.

Other issues include the potential that certain employees who use social media to promote the company might have a claim for getting paid when they do it.

Social media and its impact on labor and employment law is constantly changing, and social media law, precedent and regulatory guidance should be reviewed regularly in order to assure compliance.

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