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A G&A Series: Social Media and the Workplace

Part 1: Social Media Guidelines—How to Establish a Code of Conduct Within the Rule of Law

Each day, billions of people access social media platforms to communicate, seek information, network, and do business with individuals and organizations worldwide.

As a result, business owners are showing increasing confidence in the reach and potential of social media. In fact, 91% of executives surveyed by the Pew Research Center and Sprout Social reported that their company's social media marketing budgets will increase over the next few years—most by more than 50%—and 85% stated that social media data will be a primary source of business intelligence for their company moving forward.

Social media is a powerful, modern-day communications and marketing tool—but there is a flip side. Even if your company is not active on social media, you can be impacted by a negative tweet on Twitter, a bad review on Yelp, or a damaging post on Facebook. And the source of negative information could be your own employee.

A comprehensive social media policy establishes internal parameters that guide the online behavior of your employees. It is a vital component of your business strategy and may be the key to helping your company survive an internet blunder or avoid spending countless hours trying to salvage your company's good name.

This three-part series examines social media policy and strategy from several angles, including:

  • Part 1: Social Media Guidelines: How to Establish a Code of Conduct Within the Rule of Law
  • Coming soon -- Part 2: Share Your Commitment to Diversity, Equity, and Inclusion Through Intentional Social Media
  • Coming soon -- Part 3: Harnessing the Power of Social Media for Your Business

Social Media Guidelines: How to Establish a Code of Conduct Within the Rule of Law

"It's important for organizations to clearly define their stance on the topic of social media," according to Zippia's "30 Surprising Social Media at Work Statistics [2022]: What Every Manager Should Know" by Chris Kolmar. "Having no regulations about their employee's usage of social media can have dire impacts on success because it can harm their brand image online if their staff makes inappropriate posts."

Consider this scenario:

After a tough day at the office, your employee, Jane, logs into her private Facebook account and vents online about “awful” co-workers and her “unfair treatment” at work. Jane doesn’t think it’s a big deal because only her Facebook “friends” can see the message. However, some of her Facebook friends are co-workers, and Jane has her company name listed on her profile. This seemingly innocuous post spreads like wildfire the next day through interoffice email, and in less than 24 hours, you’ve got a sensitive social media situation on your hands.

So, what can businesses do—proactively and reactively—to protect against the ramifications of statements made by employees on their personal social media accounts?

A provocative post could go viral and reach millions of social media users, regardless of whether the information is accurate. If a social media user identifies their employer on social profiles, there could be severe repercussions for creating or sharing inflammatory, racist, sexist, and/or ableist posts (and more).

While it’s essential to act quickly to minimize damage to your company’s reputation, it’s also important to know the limits of the law regarding the rights of your employees to free speech and what counts as protected social media activity on personal accounts.

woman on computer and playing on phone

Social Media and the First Amendment

The First Amendment prevents interference with freedom of speech, but it does not guarantee that right in private settings. This means that comments made by a private-sector employee at work—whether in person or on social media—are not shielded by the First Amendment from employment consequences, according to The National Law Review’s “Social Media Posts During Turbulent Times: FAQs on Employee Rights and Employer Responsibilities.”

And, if a private-sector employee makes the same comments in person or on social media while off-duty, their employer can take disciplinary action (including termination) except in states that prohibit employers from firing or retaliating against employees for any off-duty lawful activity. Those states include California, Colorado, Louisiana, New York, and North Dakota.

“Employers may not be in a position to police everything employees do outside of work, however, once someone complains to an employer or calls attention to an employee’s off-duty comments or actions, it becomes the employer’s concern,” states the National Law Review article. “Employers can create legal, reputational, and cultural risks by ignoring off-duty conduct, particularly if the conduct constitutes harassment based on a protected class.”

“Employers can create legal, reputational, and cultural risks by ignoring off-duty conduct, particularly if the conduct constitutes harassment based on a protected class.”

— The National Law Review’s “Social Media Posts During Turbulent Times: FAQs on Employee Rights and Employer Responsibilities”

Social Media and the NLRA

The National Labor Relations Act (NLRA) and similar state laws safeguard the rights of employees to discuss the terms and conditions of their employment, whether they are part of a union or not. Activities protected under these laws include sharing information in person or online about wages, benefits, tip-sharing arrangements, management, hours, or other work conditions.

Even though employers can discipline (or even terminate) workers employed on an “at-will” basis for making offensive social media posts, some social media activity may be protected by the NLRA. And, if an employee is terminated—or believes they are a victim of retaliation because of a social media post or activity—they can file a charge against an employer or labor organization through their National Labor Relations Board regional office.

Corporate Compliance Insights’ “Can an Employee Be Fired for Sharing a Questionable Social Media Post?” says that, in general, employers cannot fire an employee for:

  • Posts that share truthful statements about working conditions, like harassment or an unsafe workplace.
  • Comments indicating the employee’s support for or interest in joining a union.
  • Suggestions to other co-workers that they contact a lawyer to get information about their rights in the workplace.
  • Demographic information like the employee’s race, sex, age, religious affiliation, or pregnancy.

Your Company’s Social Media Policy

According to the Pew Research Center, seven in 10 Americans use social media, so it’s safe to say at least some of your employees are posting on and off the clock.

While you can’t control every post, Tweet, or review your employees type, you can create and implement a social media policy. The most effective policies set clear guidelines regarding the use of social media at work and should also outline expectations for how your employees conduct themselves off-duty on their personal social media accounts—as a representative of your company.

Consider including the following elements in your organization’s social media policy:

  • Identify employees who actively post and reply on your company’s social media accounts. Make it clear that only these individuals can speak on behalf of your company, and outline what designated employees can and cannot post online.
  • Establish clear rules around the use of social media during work hours. Some employers strictly prohibit employees from accessing personal social media accounts at work, while others limit usage to lunch hours and breaks.
  • Outline what employees can post about the company on their personal social media accounts and establish a general code of conduct for all personal social media activities. For example, encourage employees to maintain workplace confidentiality, avoid posting negative information about the company, be respectful of others, and avoid creating or sharing offensive or discriminatory posts.
  • Explain how positive—and voluntary—posts on employees’ personal social media accounts can help your company thrive. For example, encourage your employees to share why they enjoy working for you, how they feel supported by their manager or mentor, and customer testimonies about how your product or service impacted their life.
  • Detail your company’s established procedures and processes for dealing with social media conflict or crisis—including who they should reach out to for guidance and under what circumstances.
  • Communicate the consequences employees could face if they violate your company’s social media policy.

According to the National Law Review article, achieving buy-in from employees is particularly important. An employer can face liability for offensive social media posts on an employee’s personal account if the company is aware of discriminatory harassment and the conduct creates a hostile work environment.

In addition, your social media policy should be:

  • Included in your employee handbook
  • Distributed to all employees
  • Accompanied by training on the subject

Employees should also be asked to sign the policy to confirm their commitment to abiding by the rules outlined in your social media policy.

of executives surveyed by the Pew Research Center and Sprout Social reported that their company's social media marketing budgets will increase over the next few years.

91%

As always, a good first line of defense is open communication. When confronted with an employee’s negative social media post, consider your options before acting. Human Resource Executive’s “5 Ways to Address Negative Social Media” recommends asking the employee to take down the post or to request that the social media platform (website) remove the post. Counter the post on your organization’s social media accounts and emphasize that your employee’s comments do not reflect the company’s values. You could also ask them not to identify their employer on social media. Legal action—or termination—should be carefully vetted to ensure you are not violating your employee’s rights or the law.

Part 2: Share Your Commitment to Diversity, Equity, and Inclusion Through Intentional Social Media - Read it here
Part 3: Harnessing the Power of Social Media for your Business - Read it here

How G&A Can Help

G&A’s experienced human resources professionals understand the nuances of federal and state labor laws and can keep you informed of any relevant paid leave laws—including those related to remote workers moving to a new state or newly hired remote workers living in a different state.