Social media is one area that causes a lot of confusions and frustration for employers. Here are some of the most commonly asked question we receive about social media in the workplace:

What laws do I need to understand when it comes to employees posting on social media?

One of the biggest misconceptions that employees hold is that the First Amendment grants them free speech rights in their private sector workplace. In reality the First Amendment provides the right to free speech and allows people to express themselves without interference from the government. It provides no protection to employees working in the private sector.

The agency that does provide some protection for employees in this case is the National Labor Relations Board (NLRB). The NLRB is an independent federal agency that protects the rights of private sector employees to join together, with or without a union, to improve their wages and working conditions.

In past cases, the courts have found that a violation of a social media policy constituted a legitimate, nondiscriminatory reason for firing an employee. However, there are several recent decisions by the National Labor Relations Board that hold an employer liable under the National Labor Relations Act for terminating an employee related to social media if the actions are related to Protected Concerted Activity under the National Labor Relations Act.

Protected Concerted Activity is a legal term used in labor policy to define employee protection against employer retaliation in the United States.

The National Labor Relations Board has made a point of protecting employees who discuss their working conditions, complaints and terms of their employment with other employees through social media.

What does this mean to you as an employer? Before making the decision to terminate an employee because of a social media post, employers need to ask:

  • Was the employee discussing issues with another employee that may be interpreted as protected concerted activity?
  • Was the employee criticizing a management policy or complaining about compensation or other terms and conditions of employment?

If the answer to either question is yes, employers and their legal counsel should know that these types of postings are likely protected under the National Labor Relations Board, regardless of whether a union is involved.

When is it ok to move forward with disciplinary action or termination in relation to an employee’s use of social media?

  • If an employee makes complaints or threats against customers
  • If an employee posts content that could be considered harassment towards a co-worker
  • If an employee reveals confidential information about the company or client relationships or other information that may harm the company’s reputation in the marketplace
  • If an employee shares information that shows the employee engaging in deception or violating company rules.

Keep in mind that a progressive discipline process should be followed whenever possible.

 What should I do if an employee is posting negative things about me online?
Prevention in your best weapon when it comes to negative social media posts by employees. Don’t wait until there is an issue to put a social media policy in place. Make sure you employees understand what is acceptable and unacceptable when it comes to social media. Also consider that there is likely a larger issue with employee experience at your organization if employees are going to social media to air the grievances. Open up the lines of communication with employees. Conduct stay interviews or short employee engagement surveys to get a feel for the perception employees have of your organization before an issue arises.

Should I friend or follow my employees on social media?
There are no laws against befriending and following employees on social media, but it is not advised. Employers who befriend or follow employees on social media may subject themselves to discrimination claims, as they may have access to information an employee’s medical history, religious affiliation or other information that would place an employee in a protected class that the employer would not have access to otherwise. Further, co-workers who friend one another may compromise workplace morale if they are exposed to one another’s political views, personal lifestyle and other personal views and do not agree.

Though there may not be immediate repercussions, if an employee is later terminated, he could claim it was because of information the employer had access to on social media.

Can I look at a potential employee’s social media account prior to hiring them?
Employers who use social media in the hiring process must be aware of the associated dangers. Employers may be opening up the door to discrimination claims if social media competence plays a part in hiring decisions or if they run across information on an employee’s account that cannot be unseen. We recommend that employers do not use social media as a part of their hiring process.

For answers to even more frequently asked questions, check our our on-demand webinar- Managing Social Media in the Workplace.

If you have questions about how to tackle social media at your organization, contact our HR experts at 1-800-748-5102 or