Social media is a pervasive force for employees and employers. It is part of everyday interaction in the workplace, and people must be mindful about what they post. Employers have to consider social media’s role when it comes to employees and the company’s brand. Responsible social media use requires awareness by both parties.

University of Dayton law professor Thaddeus Hoffmeister, co-author of “Social Media Law in a Nutshell” (West Academic Publishing, 2017), said the key is to think about privacy and family: Is your social media presence potentially embarrassing to relatives?

Job Seekers and Social Media Accounts

Hoffmeister recommends everyone “do a social media search on themselves,” to see what information is public. If an account is not set to private, anybody can read your posts and reactions to other posts.

Even with the risks, social media remains popular. Overall use has remained steady since 2016, and Instagram has seen a slight increase, according to Pew Research Center. Facebook is one of the most widely used social media platforms, with 69% of adults saying they use it. Younger adults favor Instagram and Snapchat.

Employees and Social Media Activity

Before the internet and social media, people’s private and personal lives were easy to separate from their work and places of employment.

“That’s not how today’s world works,” Hoffmeister said. “Employers are going to look at whatever’s out there.”

It’s easy to overlook negative outcomes after an exciting development. Job candidates might forget their accounts are public as they share updates. A famous 2009 incident involved a tweet from an individual who received a job offer from a major tech company: “Cisco just offered me a job! Now I have to weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work.” Cisco employees saw the tweet and rescinded her job offer, and the incident now is used as a cautionary tale.

What Should Employees Consider Before Posting? 

The vetting process should be straightforward for a person’s social media presence. Employers often let an outside party investigate potential hires because they don’t want to know some things — for example, a candidate’s race, religion or disability or if they are pregnant. Hoffmeister said all that companies want to know about a candidate is “whether or not they look like they are a hardworking person, that they are trustworthy, that they’re responsible.”

But applicants still need to be responsible about their digital footprint. Caution isn’t a bad idea.

Hoffmeister suggested social media users ask themselves a few questions during a job search:

Employers And Social Media

Depending on the state, employers don’t necessarily have the right to ask for private information about an individual’s social media account.

As a result of a case highlighted in “Social Media Law in a Nutshell,” Maryland was the first state to prohibit employers from asking employees and applicants for their usernames or passwords on private social platforms. Employers in Maryland do not have the right to access login information (PDF, 1.2 MB) related to an employee’s private social media accounts if they are accessed from the employee’s home computer, personal mobile phone or other personal digital devices. The law extends to job candidates: Maryland employers may not take or threaten to take adverse action against applicants who refuse to share their usernames or passwords for private social media accounts (PDF, 113 KB). 

The case described in “Social Media Law in a Nutshell” involved a Maryland Department of Corrections employee who sought to return to work in 2010 after a leave of absence and was required to go through a reapplication process in which an investigator demanded his social media passwords. The information was to evaluate if potential corrections officers had any gang affiliations before assigning them to guard prisoners. The employee turned over his passwords but later quit to return to school. He brought up the incident with the ACLU and media.

If an employer asks for social media account information, employees and job candidates should consider checking with their state department of labor or consult with an attorney.

Four Things Employees and Employers Should Know About Social Media and Employment

“Employers don’t have the time to be Big Brother, to watch all their employees, but they also have to guard the company name and safeguard the company brand,” said Hoffmeister, who  said he believes social media use of all employees and job applicants should be vetted.

In 2010, the National Labor Relations Board began receiving complaints about employees being disciplined for social media postings. The board began issuing decisions on complaints two years later, and these decisions are significant because they establish precedent. Two early cases described in “Social Media Law in a Nutshell” involved Facebook.

Social Media and Union Employees 

When an employee’s social media posts are under scrutiny by an employer, the employee cannot be denied union representation. One 2010 NLRB case involved a union employee at American Medical Response of Connecticut. A year earlier, employee Dawnmarie Souza was asked to prepare a report after a customer complained about her performance. Souza requested union representation as allowed under the union contract but was denied it by AMR. Souza was at home and on her personal computer when she posted negative comments about her supervisor on her personal Facebook page. She was fired for violating company policy. The NLRB brought action against AMR, noting it should not have denied her representation or fired her for her social media posts.

Social Media and Individual Posts 

In a case filed in 2010 involving Karl Knauz Motors in Illinois, the NLRB decided an individual’s social media posts without comments by coworkers could still be considered concerted activity. A salesman complained about whether the quality of food and beverages served by his employer at a BMW launch event matched the luxury brand. He discussed his opinions with colleagues and posted photos of the items served along with sarcastic comments on his Facebook page. His employer fired him. The NLRB decided his posts did constitute concerted activity, which is when an individual brings group complaints to the attention of management. Employees have the right to address work-related issues, and employers cannot take action against concerted activity. The employee was not reinstated because of separate violations.

Social Media and Recruitment

Social media has added another element to hiring. “You can learn things from people on social media, and you want to make sure you don’t hire someone that’s a problem employee when that easily could have been discovered with some basic research,” Hoffmeister said. But employers also must use social media wisely. When it comes to online job boards, employers need to be mindful of casting a wide net for potential hires. They don’t want to be perceived as being restrictive, Hoffmeister said. “Social media can limit groups of people.”

What Should Social Media Policy Address?

Because the intersection of social media and employment is complex, Hoffmeister emphasized  that organizations cannot overlook social media policy. Critical areas that should be addressed, he said, include: 

• Protecting the brand
• Protecting confidential information
• Guidance on what is acceptable and what is unacceptable

“You want to lay out some examples to say, hey, this is acceptable conduct. This is not acceptable conduct. Then, have an appeals process, a form of due process for people who disagree with the policy,” Hoffmeister said.

Employers who see the value in social media use by employees include Zappos CEO Tony Hsieh, who has a social media curriculum for employees. Embracing social media might not be such a bad idea if it helps employers and employees and the organization.

“Employers have got to be watchful for their employees,” Hoffmeister said. “Employees have got to be watchful for themselves because it’s easy to slip up.”

Citation for this content: University of Dayton’s online J.D. degree.