Social Media in the Modern Workplace
Social media has transformed how employees communicate, both personally and professionally. For HR professionals, social media raises important legal questions about employee privacy, free speech, company reputation, and protected activity. The SHRM-CP and SHRM-SCP exams test your understanding of how employment law applies to social media in the workplace.
Developing a legally compliant social media policy requires balancing the employer's legitimate business interests with employee rights under the National Labor Relations Act (NLRA), anti-discrimination laws, and state privacy statutes. Policies that are too broad or restrictive can run afoul of the NLRB, while policies that are too vague may fail to protect the organization.
As social media continues to evolve, HR professionals must stay informed about regulatory guidance and case law developments in this area.
NLRA and Protected Concerted Activity Online
The NLRB has taken an active interest in employer social media policies, finding many overly broad policies to be unlawful because they could chill employees' exercise of Section 7 rights. Key principles include:
- Concerted activity online: Employees who use social media to discuss wages, working conditions, or workplace concerns with coworkers are generally engaged in protected concerted activity, even if the employer disagrees with their statements.
- Individual gripes are not protected: A single employee venting personal frustrations without seeking to engage coworkers or address group concerns is generally not engaged in protected activity.
- Policy language matters: Policies that prohibit employees from making "disparaging" comments about the company, discussing confidential information broadly, or posting anything that could "damage the company's reputation" may be found unlawful if employees could reasonably interpret them as restricting Section 7 activity.
The NLRB has struck down policies that contained blanket prohibitions on negative comments about the employer, required employees to maintain a "positive" online presence, or restricted discussions about workplace conditions.
Hiring, Monitoring, and Off-Duty Conduct
Social media also raises legal issues during the hiring process and throughout employment:
- Social media screening during hiring: While not prohibited, using social media to screen candidates creates risks. Viewing a candidate's social media may reveal protected characteristics (race, religion, pregnancy, disability) that should not influence hiring decisions. Best practice is to have someone other than the decision-maker conduct social media reviews, and to document the job-related criteria being evaluated.
- Password access: Many states have enacted laws prohibiting employers from requiring employees or applicants to provide social media passwords or grant access to personal accounts.
- Monitoring employee social media: Employers can generally view publicly available social media posts. However, monitoring should be consistent and nondiscriminatory. Selectively monitoring certain employees based on protected characteristics could give rise to discrimination claims.
- Off-duty conduct laws: Some states have lawful off-duty conduct statutes that protect employees from adverse action based on legal activities outside of work, which may include social media activity.
Drafting a Compliant Social Media Policy
An effective social media policy should include the following elements:
- Clear scope and purpose: Define what the policy covers and its business justification.
- Specific examples: Instead of broad prohibitions, provide concrete examples of prohibited conduct (such as disclosing trade secrets or making threats).
- Savings clause: Include a statement that the policy is not intended to restrict rights under the NLRA or other applicable laws.
- Confidential information: Narrowly define what constitutes confidential information to avoid NLRB challenges.
- Respectful workplace: Reinforce anti-harassment and anti-discrimination policies without broadly restricting employee communication.
- Disclaimer requirements: Require employees to clarify that personal posts do not represent the employer's views.
Have your social media policy reviewed by legal counsel familiar with NLRB guidance before implementation. Regularly update the policy as laws and platforms evolve.
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Social media policy questions on the SHRM exam test your understanding of NLRA protections, hiring practices, and employee privacy rights. The exam includes 134 questions over 4 hours at Prometric or OnVUE.
SHRMpractice.com covers social media and digital workplace topics alongside traditional employment law. Start with our diagnostic to evaluate your readiness, and sign up to practice with comprehensive exam-style questions.