There is no shortage of divisive issues fueling conflict between people who take their opinions to social media platforms, from war in the Middle East and Ukraine to a presidential election cycle here in the U.S. And while the right to free speech is embedded in the fabric of our nation, the public airing of controversial opinions held by a company’s workers can cause sticky business challenges for employers.

“Workers’ social media posts on hot-button issues like the Israel-Hamas war and race relations are increasingly playing a role in hiring and disciplinary decisions, creating some of the toughest quandaries employment lawyers say they’ve ever faced,” Law360 reported.

Social media presents both risks and rewards for today’s employers. With proper policies and training, companies can take advantage of social media for recruiting, marketing and employee engagement. However, without thoughtful guidance, social media can become a legal and public relations nightmare.

LexisNexis® recently partnered with ALM® to host a webinar, “Social Media in the Workplace: What In-House Counsel Needs to Know,” in which we explored the main points to consider when assessing the risks associated with employee social media use, and the need to develop and distribute a sound social media policy to all employees.

Balancing Confidentiality, Brand Reputation and Legal Compliance in Workplace Social Media Policies

In general, social media policies in the workplace should strive to prohibit the disclosure of any confidential and/or proprietary information, any derogatory posts that disparage the corporate brand, and the posting of any employer logos or pictures without authorization. They should also strive to require that all employee posts be written in a respectful tone and that they be accompanied with disclaimer language that their opinions do not reflect any official position of their employer.

There are also some individual state privacy laws that employers need to navigate when developing workplace social media policies in order to maintain legal compliance. These laws can impose serious restrictions on employer access to their employees’ personal social media accounts. This is an emerging area of law and must be closely tracked by in-house counsel to make sure the company does not run afoul of these constraints.

Mitigate the Risk: Key Tips for Crafting Effective Workplace Social Media Policies

There are a wide range of issues that in-house counsel should evaluate in order to reduce their organization’s risk when it comes to their employees’ use of social media. Here are a few tips to consider when shaping workplace policies:

• Be cautious about monitoring employee social media use

The unauthorized monitoring or accessing of employee personal social media accounts may implicate the federal Stored Communications Act (SCA). The SCA generally prohibits intentional, unauthorized access to electronic information. Although the SCA was enacted in 1986, many years before the advent of social media, courts have shown a willingness to apply the law to social media use.

• Implement guidelines for use of social media in hiring process

The review of job candidates’ social media posts is often a useful component of the hiring process, but some best practices should be followed to ensure it is done properly. For example, assign an independent reviewer who is trained to properly screen the information you’re seeking, limit their access to publicly available information and make sure they are reviewing job-related information only. Remember that federal, state and local employment hiring laws apply here.

• Don’t forget internal social networks

Employees are more likely to act appropriately when using a corporate-sponsored internal social media network, but in-house counsel should nonetheless tailor social media policies to address what employees can and cannot post on such networks. It’s a good practice to select certain employees to monitor the internal social media posts relating to specific topics and take down any posts that do not comply with company policy.

• Review discrimination and harassment policies in context of social media

The ease of broadly disseminating information through the press of a button or the click of a mouse enables employees to use social media to create a hostile work environment in countless ways. Employers should therefore review their discrimination, harassment and social media policies to ensure they address any potential unlawful employee behavior that occurs online or through social media.

View a free, on-demand recording of the recent ALM/LexisNexis webinar, “Social Media in the Workplace: What In-House Counsel Needs to Know.” 

Unlocking Effective Workplace Social Media Policies: Insights from LexisNexis

Practical Guidance from LexisNexis offers a breadth of resources to help in-house counsel develop social media policies for their workplaces, such as:

• Social Media Workplace Issues and Best Employer Practices Checklist, written by a team of labor and employment attorneys at Mayer Brown LLP, that provides a review of items that should be included in social media workplace policies;
• Social Media Issues in Employment: Counseling Employers on Key Social Media Issues, a practice note written by the same authors goes into detail about the effect of employee social media use on employers and corporate legal strategies for managing this challenge;
• Social Media Policies: Key Drafting Tips, a practice note from an employment attorney at DLA Piper LLP, includes a sample social media policy for employers.

All of the Practical Guidance  content from LexisNexis addressing social media in the workplace — including how social media relates to management, employee privacy, policies, and agreements and covenants — can be found in the Social Media in the Workplace Resource Kit. The kit includes practice notes, state law surveys, checklists, templates and clauses.

This resource kit and other Practical Guidance content is available to all subscribers of Lexis+® General Counsel Suite.

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