Social media has transformed how people communicate, but it has also created legal challenges in the workplace. Employers want to protect their reputation and confidential information, while employees want to express themselves freely. The big question is: how much control can an employer legally exert over an employee’s social media activity? Let’s break it down.
Can Employers Restrict Employee Social Media Use?
Yes, but with limitations. Employers can implement social media policies to safeguard their business interests, prevent workplace harassment, and maintain productivity. However, they must ensure these policies do not violate employee rights under federal and state law.
For example, the National Labor Relations Act (NLRA) (29 U.S.C. § 157) protects employees who engage in “concerted activity”—discussions about wages, working conditions, or unionizing efforts. The National Labor Relations Board (NLRB) has ruled that employers cannot discipline workers for social media posts that fall under this protection (NLRB v. Pier Sixty, LLC, 855 F.3d 115 (2d Cir. 2017)).
Employers can take action against employees for social media posts that:
- Violate company policies (e.g., harassment, discrimination, or confidentiality rules).
- Contain threats, hate speech, or defamatory statements.
- Cause significant reputational harm to the employer.
However, a blanket ban on work-related social media discussions could violate federal labor laws.
Employee Privacy Considerations
Employees should be aware that their social media activity—even on personal accounts—can have workplace consequences. While private-sector employees do not have First Amendment protections in the workplace, they are still protected from unlawful termination under state and federal laws. In West Virginia, wrongful termination claims can arise if an employer’s actions violate public policy (Harless v. First Nat’l Bank, 246 S.E.2d 270 (W. Va. 1978)).
Additionally, some states prohibit employers from demanding access to employees’ private social media accounts. West Virginia does not currently have such a law, but employers should be cautious when attempting to monitor or discipline employees based on private social media activity.
Best Practices for Employers
To balance business interests with employee rights, employers should:
- Develop a Clear Social Media Policy: Outline what is and isn’t acceptable, including prohibitions on sharing confidential information, engaging in workplace harassment, or making false statements about the company.
- Respect Concerted Activity Protections: Ensure policies do not unlawfully restrict employees from discussing workplace issues.
- Be Consistent with Enforcement: Avoid selectively disciplining employees for social media activity.
- Provide Training: Educate employees about professional social media use and potential risks.
What Employees Should Keep in Mind
Employees should:
- Know Their Employer’s Policy: Read and understand workplace social media rules.
- Be Mindful of Public Posts: Even if a post is meant to be private, it could still be screenshotted and shared.
- Avoid Defamation or Harassment: Negative opinions about work are one thing, but making false statements or harassing coworkers can lead to discipline or termination.
- Understand Legal Protections: If an employer takes action against an employee’s social media use, the employee may have legal recourse under federal or state laws.
Conclusion
Social media in the workplace is a legal gray area that continues to evolve. Employers must balance protecting their interests with respecting employee rights, while employees should be aware that their online actions can have professional consequences. Clear policies, proper training, and awareness of legal protections can help both sides navigate this complex issue.
