Social Media and the Law

There is no doubt that we are living in a social media world. Our lives consist of updates and checking pages on a regular basis. Just ask the girl that walked off a pier while checking Facebook. But seriously, social media is how many people get their news and stay in touch with the people they care about most.

When it comes to employer and employee relations though, what can be determined as too much? Or oversharing? Does the First Amendment give us the right to say whatever, even when it comes to our work life? Or are we bound by other laws that tell us what we are protected to say and not to say?

These are great questions and as social media has progressed into our lives they are recently starting to be answered by legislators and employers are starting to make regulations based around these activities.

Kelli Lieurance, a partner at Baird Holm LLP, gave some insight to attendees of Social HR Camp this year on this very subject. “Many people say, ‘Well, what about my right to free speech?’ Well your right to free speech, protected by the First Amendment, is meant to protect you from the government. It has nothing to do with your relationship with a private employer.”

This point is one I think many need to realize as they rant away on social media about their day at work, especially if it was a bad one. There are laws in place to protect employees from employer retaliation in some cases though, but the guidelines are quite specific. These laws include:

Off-duty conduct laws – These laws were originally set in place to protect smokers from discrimination, but many use language that helps protect employees from being punished for doing activities while they are on their own time and off-site, as long as they are not breaking the law.

Social media example: An employee over the age of 21, posting a picture drinking a glass of wine.

Protections for political views – Many people take to Facebook and Twitter to express how they may feel about a candidate. A handful of states have laws that prohibit employers from using political views expressed on social media as a mean of discrimination.

Social media example: An employee using Facebook to express how much they love Hillary Clinton.

Prohibitions on retaliation – Some laws protect employees from retaliation of employers if they claim in a post to have their rights violated by employers such as workplace discrimination or harassment.

Social media example: An employee using Twitter to tell about the violation on the Family and Medical Leave Act that their employer exhibited.

Protections for “whistlebloggers” – A whistleblogger or whistleblower is someone that raises concern for workplace safety or illegal activity in the workplace but is protected as they are recognized to be serving the public good with their concern.

Social media example: An employee using their personal account to show concern over safety regulations at work and protocols that are not being followed properly.

Concerted activity protections – This one gets a little more complicated. The National Labor Relations Act (NLRA) and other laws give employees the right to communicate with each other about the terms and conditions of employment. This can appear in different forms depending on what is being discussed. They also have the right to join together before bringing these issues forward to a manager and/or employer. This is something that can take place on social media, starting with a post, as many co-workers are connected through these sites and they can then use these outlets to discuss together about wages, poor benefits, long work hours, etc.

Social media example: An employee posting on Facebook about the long hours that they work for an employer and other employees joining in, as well as liking the post.

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What social media stories have you heard about employer and employee relationships? Have the outcomes of any surprised you?

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