Want to stay out of trouble? Read on!
Did you know that this Sunday will be "Social Media Day"? Neither did I.
But even after all this time, social media continues to get employees and employers in trouble. Here are six tips for employees, followed by four tips for employers. (That adds up to 10.) Following these tips may not always keep you out of hot water, but they'll certainly help you stay cool.
Social media tips for employees
No. 1: Know your rights (or lack thereof). You may have heard of the First Amendment and how it guarantees freedom of speech. That is kind of true, but it's also misleading because the First Amendment doesn’t shield you from all repercussions from what you say. For example, if you post on Facebook that your boss is an idiot, and your boss sees it and gets mad, your boss can fire you without violating the First Amendment, right? Right. The First Amendment protects you from having the government throw you in jail for expressing your opinions. But it won't protect you from losing friends, facing social backlash, or even losing your job because of what you say, so post accordingly. (If you work for the government, you have more First Amendment protections than private sector employees, but even then your rights are not unlimited.)
No. 2: Steer clear of political debates. If you enjoy posting about politics, watch out, especially in today's climate. Regardless of what you say, political posts are likely to upset half of your friends or followers. Or maybe that's just me -- I live in a swing state. Some individuals might react so strongly to your views that they could stop being your friends, or cause even more serious problems for you.
No. 3: Don't post about sex or illegal activity. If you must share about sex or illegal activities, avoid doing it on social media. Inquiring minds don't want to know. (Posting about sex could be deemed sexual harassment if seen by co-workers who are offended. Which leads to the next point…)
No. 4: If you must overshare, unfriend or block all of your co-workers first. If you just can't resist posting something risky/risque, then unfriend or block your co-workers first and crank up those privacy settings as far as they will go. But it's still better not to post that type of content at all. If you post with precautions, someone might still find your post, take offense, and report you to your employer.
No. 5: You have the right to remain silent. Anything you say can and will be used against you in the workplace. Always assume that your social media posts could come back to haunt you. Employers (current and prospective) and online vigilantes are always watching.
No. 6: On the other hand, boring is good. If your posts are about cute babies, the buffet at the Golden Corral where you ate the other night, your adorable Labradoodle Maximus, and happy birthday wishes to your friends (but nothing about their ages!), you're probably in the clear. For now.
Social media tips for employers
No. 7: Understand your rights. Generally, you have the right to act against an employee for inappropriate social media posts that offend co-workers, disparage your business, disclose confidential information, or damage your company's reputation. You can also take action based on posts that are discriminatory or harassing based on race, sex (including sexual orientation and gender identity), national origin, religion, age, or disability, and against employees who communicate threats via social media or who post about their illegal activities.
If you are an employer in the health care industry, you can also take action to prevent and address (when it occurs) postings that may violate the privacy rights of patients or their families.
No. 8: Seek legal advice. Always consult with your labor or employment counsel before acting. Posts related to terms and conditions of employment may be considered "protected concerted activity" under the National Labor Relations Act, making it potentially unlawful to act against the employee. This applies even to non-union companies, and even a simple "Like" could be protected.
No. 9: Ignorance is bliss. Prohibit, or at least strongly discourage, your managers and supervisors from being "friends" or "contacts" with employees on social media. Otherwise, they might learn more about their employees than they really need or want to know. For example, that Jane is taking anti-depressants. Or that Joe belongs to a bizarre religious cult. Ignorance can be bliss—and it can also be a defense against discrimination claims. (You can't discriminate against someone based on a protected characteristic if you don't even know about that characteristic.)
No. 10: Be fair and consistent. Hold all "similarly situated" employees to the same standards of conduct that apply to social media. You may need to be stricter with higher-ups who violate your policy.
A little caution and common sense can go a long way in preventing a social media disaster. Stay smart, stay cool, and keep those posts drama-free!
Of Counsel & Chief Legal EditorRobin also conducts internal investigations and delivers training for HR professionals, managers, and employees on topics such as harassment prevention, disability accommodation, and leave management.
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This is Constangy’s flagship law blog, founded in 2010 by Robin Shea, who is chief legal editor and a regular contributor. This nationally recognized blog also features posts from other Constangy attorneys in the areas of immigration, labor relations, and sports law, keeping HR professionals and employers informed about the latest legal trends.
