Employer Responsibilities and Employee Rights in Social Media

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Social media has capitalized in many ways. We use it in ways of communicating, searching endlessly and recognizing potential opportunities of value. Yet, these platforms present companies with numerous legal predicaments if not properly executed.Employers are strongly advised to invest the time and resources to understand their responsibilities, as well as their employees’ rights. After understanding all areas, employers can then confidently leverage these platforms without triggering a fracas.

HIRING PROCESS: It is best not to utilize social media channels for any formal or informal due diligence. Federal, state and local laws prohibit employers from making hiring decisions based on certain characteristics of a candidate, such as race, religion, gender, sexual orientation and disabilities. The best way to avoid this potential legal battle is to make hiring decisions based solely on applications, resumes and interviews and not social media profiles. EMPLOYEE HANDBOOK: It is absolutely necessary for today’s employers to guide employees on how they are expected to conduct themselves in an online environment. While this policy should in no way restrict employee’s rights to freedom of speech, it can be used as a motive for informing employees that a policy exists to protect confidential information and prevent online harassment.

  • Considering Section 7 & 8 of the National Labor Relations Act (NLRA), it is unlawful for an employer to interfere with, restrain, or coerce employees in the exercise of their rights thereby granting employees their right to unionize, to join together to advance their interests.
  • If an employer takes adverse action against an employee in situations such as liking a comment specific to the topics of pay, working conditions or other issues employees are legally entitled to discuss, the employer could be in violation of the NRLA and can set off a series of legal implications.
  • It is best for a company to include a disclaimer within its social media policy to protect from these violations. The disclaimer should recognize that the company respects employees’ rights to express opinions and the terms of their employment in a public forum.

Employers should consult with their legal counsel on both the development and implementation of a social media policy. Legal counsel will be able to cite recent state and federal laws, cases and memorandums to help shape a comprehensive and effective policy for the workplace.

EVIDENCE PRESERVATION: Employers also need to consider that any statements made on social media are public proclamations and can be revisited in a courtroom. Therefore, it’s crucial to review thoroughly, preserve and document any social media engagements and quandaries in an effort to fully protect the organization, to serve as a back-up should a comment or post be deleted. Court of law views it as the employer’s duty to preserve all evidence, because as you know, if it has not been documented then it never happened.

Social media law is a relatively new common ground. With the law and technology evolving at a rapid pace more than ever before, legal counsel should be positioned to help businesses proactively manage their social media strategy, to resist any impediments, should there be concerns relating to the subject or situation at hand.

1. https://www.nlrb.gov/rights-we-protect/whats-law/employers/interfering-employee-rights-section-7-8a1
2. http://www.constructionexec.com/en-us/workforcesafety.aspx