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“Following” Employees’ Social Media Activity

November 25, 2020, by Sahar Shiralian

The COVID-19 pandemic has forced many people into relative isolation. Some authorities are advising people to hunker down and isolate even more as we approach the most coveted American tradition – Thanksgiving. So, it is no surprise that many people are turning to social media to connect with friends and family, as well as to voice opinions and vent about the pandemic, the election, etc. While people congregate on social media platforms such as Twitter, LinkedIn, and Instagram they forget, or are unaware of, the implications and permanency of their actions. And, the demarcation between workplace and public space gets blurred.

Understandably, employers are rightfully anxious about what their employees are saying and doing online. An employee’s social media post or even a “like” can tarnish a company’s reputation or brand. Given this whirlwind year and that statements online are heavily scrutinized, employers should review their social media policies and practices. Below are “do’s and don’ts” regarding the extent of an employer’s control over the social media use of their employees.

The Do’s

An employer certainly has the right to control what an employee does on the employer’s time (i.e., during work hours) and with the employer’s equipment. For example, an employer may have a written electronic equipment policy limiting or even forbidding personal use of the employer’s electronic systems and informing employees that that there is no privacy in the use of the employer’s electronic systems.

While employees have more protections with respect to off-duty conduct, they are still subject to limitations that employers can enforce. Permissible restrictions to an employee’s off-duty social media activity include the following:

  • Employers have a right to restrict employees from posting the employer’s confidential information online, including trade secrets or customer information;

  • Employers can prohibit posts that would threaten or harass other employees, which include sexual harassment or discriminatory comments based on race, national origin, gender, or sexual orientation; and
  • Employers can prohibit employees from using the company’s name, logo, or other protected remarks online.

It is beneficial for employers to draft social media policies that clearly express the above restrictions, especially during this turbulent time.

The Don’ts

While employers can have social media policies that limit what an employee can and cannot say on social media, the law does not allow employers to completely control what their employees do online.

  • Employers cannot prevent employees from engaging in politics or controlling employee political activity or affiliation. Protected “political activity” includes discussions that advance any political belief, such as mask mandates, election results and BLM, so long as the discussions are not harassing or discriminatory;

  • Employers cannot attempt to coerce or influence employee political activity through demotion, pay reduction, or termination; and
  • Employers cannot prohibit employees from speaking freely about their employer or their working conditions. This means that an employer cannot discipline or terminate an employee for making posts or liking posts about working conditions or criticisms of the company, even if inaccurate, as long as it is not defamatory.

What Should be in a Social Media Policy?

When drafting a social media policy, be mindful to include the following:

  • Strictly prohibit the use of personal social media during work time or on the company’s electronic equipment;

  • Strictly prohibit social media posts that are harassing or discriminatory. Examples of such conduct might include offensive posts meant to intentionally harm someone’s reputation or posts that could contribute to a hostile work environment on the basis of race, sex, disability, religion or any other status protected by law;
  • Strictly prohibit defamatory posts about the employer/company. Employees should not post any information or rumors that they know to be false about the employer, fellow employees, members, or other people working on behalf of the employer;
  • Warn employees that they should be mindful of what they post online;
  • Remind employees to only express their personal opinions and never represent themselves as spokesperson for the company. This includes having employees avoid hashtags of the company’s name, unless the post is on behalf of and with approval of the company; and
  • Remind employees of the implications and permanency of personal social media posts and how it can affect their professional reputations, as well as the company’s. These reminders can be incorporated not only in your written social media policies, but they can also be explained again during sexual harassment and discrimination trainings.

As we move into a digital workspace during this unprecedented time, it has become more important than ever to have a clear social media policy. The failure to have a social media policy goes beyond the issues discussed in this article – a lack of clear social media guidelines could result in a multitude of legal issues ranging from off-the-clock and time-keeping issues, violations of privacy policies and law, discrimination and harassment.