Facebook alone has more than 500 million active users. If Facebook was a country, it would be the world's third-largest country by population. Statistics show that the fastest growing demographic of social-media users are not teens, but individuals of mid-career age. With this novel and increased use of social media in the workplace, lines between professional colleagues and social “friends” can become blurred. This creates unchartered territory for many employers, with little to guide them on this journey.

Employees often create these types of problems not because they are acting maliciously, but because they are acting—or posting—without thinking. Much of what individuals share online is uncensored and therefore can be subject to misinterpretation.

Discipline Decisions

There are multiple scenarios that may prompt an employer to discipline an employee for his or her social-media use. The most obvious situation is when an employee engages in illegal web-based activity while at work.

Another common scenario is where an employee spends a significant amount of on-duty time using applications like Facebook.

Other situations may include employees who violate company policies with their use of social media by posting suggestive or distasteful photos or videos or even calling in sick and then posting photos on a social-media site showing them in perfect health on that day.

Before deciding to take an adverse employment action against an employee based on his or her social-media use, employers should consider the legal constraints on doing so, including:

• The National Labor Relations Act, which affords employees (even those who are not unionized) the right to engage in “concerted activity.”

This includes the right to discuss the terms and conditions of their employment (and even to criticize their employers) with co-workers and outsiders. According to the NLRA, a concerted activity is action engaged with or on the authority of other employees and not solely by and on behalf of the employee alone.

• Was the employee engaging in “legal off-duty activity?”

Certain states have what are called “lifestyle statutes,” which are laws that protect an employee or applicant's legal off-duty activities, including an employee's political activities.

• Does the employee have a potential discrimination claim?

Employers are prohibited from unlawfully discriminating against employees on account of protected characteristics, including race, age, sexual orientation, marital status, disability and even genetic information. An employee terminated for inappropriate social-media use may later assert the employer's actions were discriminatory.

Whether employees are communicating with friends outside the workplace or with co-workers and business partners regarding work-related projects, employers should have clear policies regarding the use of social media. Employees should be informed of potential risks and made aware of the employer's expectations.

While such a policy will not necessarily insulate an employer from all potential liability, it will reduce employees' expectations of privacy and provide the employer with more discretion to take action against employees who engage in electronic misconduct.

In drafting such a policy, employers may want to consider the following:

• Company equipment is designed primarily for business use.
• Employees must comply with company policies with respect to their electronic communications, such as policies prohibiting harassment and standards of conduct.
• If allowed at work, time spent on social networking should not interfere with job duties.
• Remind employees to comport themselves professionally both on and off duty.
• Do not prohibit employees from discussing the terms and conditions of employment.
• Employees must abide by non-disclosure agreements or confidentiality policies.
• Employees must clearly communicate that the views in their blogs are their own and not those of the employer.
• The company reserves the right to take disciplinary action against an employee if the employee's electronic communications violate company policy.

Risks Employers Run When Using Social Media

Employers can face liability in connection with social-media activity based upon their own actions as well. Personal and protected information such as race, religion, marital status, etc. is readily available and prevalent in social-media and other Internet sites, and it can be tempting for those making hiring decisions to access that information.

Again, it is important to keep in mind that much of what individuals share on social-media sites is uncensored and may be inaccurate. If an employer does access protected information via a social-networking site during the candidate-screening process, an allegation of discrimination might be alleged even if the company did not actually rely on the information in making its hiring decision. A company can easily find itself in a defensive position if it does not have guidelines in place regarding access to social media as part of this process.

While the mere existence of a social- media policy and hiring guidelines may not eliminate the risks and challenges posed by employees' unauthorized communications, or an employer's hiring practices, a policy that is well-drafted and reviewed by counsel for legal sufficiency should provide employers with more options for taking appropriate corrective and preventative action.

The views and opinions expressed herein are those of the author and do not necessarily reflect those of Chartis Inc. or any of its member companies.

For more on employment risks associated with social media, see related article, “Social-Media Risks: Facebook Dating, Book Burning & Employee Bathing.”