Employer Liability and Social Media
Understanding employer risks related to employee social media use, including NLRA protections and policy development.
AEA Editorial Team
The Landscape
Social media creates both opportunities and risks for employers. Employees' online activity can affect your organization's reputation, create legal liability, and raise complex questions about the boundary between work and personal life.
Legal Considerations
National Labor Relations Act (NLRA)
The NLRA protects employees' rights to engage in "concerted activity" - actions taken together or on behalf of a group to improve working conditions. This applies to most private-sector employees, whether unionized or not.
Social media posts may be protected if they:
- Discuss wages, hours, or working conditions
- Are part of or seeking to initiate group action
- Are not merely personal gripes
Your social media policy cannot prohibit or chill protected concerted activity.
Off-Duty Conduct Laws
Many states have laws protecting employees' lawful off-duty activities. A social media policy that restricts employees' personal social media use may violate these laws.
Privacy Concerns
- Most states prohibit requiring employees to provide social media passwords
- Monitoring personal social media accounts raises privacy concerns
- Be cautious about making employment decisions based on social media content that reveals protected characteristics
Developing a Social Media Policy
A lawful and practical policy should:
Address Business Use
- Define who may post on behalf of the company
- Establish approval processes for official content
- Require appropriate disclaimers
- Set guidelines for engaging with customers and the public online
Address Personal Use
- Remind employees that publicly shared content may reflect on the organization
- Require disclosure when discussing the employer or industry
- Prohibit sharing confidential or proprietary information
- Note that harassment and discrimination policies apply to online conduct
- Avoid broad restrictions that could chill protected activity
Include Clear Disclaimers
- State that the policy does not restrict employees' NLRA rights
- Acknowledge employees' rights to discuss terms and conditions of employment
- Note that the policy will be applied consistent with applicable law
Responding to Problematic Posts
Before taking action on an employee's social media post:
- Assess whether the post may be protected concerted activity
- Consider whether the content reveals information about a protected characteristic
- Evaluate whether the post violates a specific, legitimate policy
- Document your analysis and rationale
- Consult legal counsel for borderline situations