Social media platforms like LinkedIn, Twitter, Facebook, and Instagram have created new avenues for networking, brand building, and personal expression. However, given that nearly every American uses some form of social media, at least occasionally, the lines between personal and professional are blurring more than ever. As a result, employee use (and misuse) of social media has also begun to introduce new risks for employers.
This past summer, for example, the Ninth Circuit Court of Appeals found in Okonowsky v. Garland that one worker’s personal Instagram posts could be construed as “harassing [a coworker] on the basis of her sex.” For that, they agreed that the employer could be held liable for not taking adequate steps to remedy the “hostile work environment created by [the] employee’s off-work social media posts.”
This finding shouldn’t have come as a surprise, as it’s consistent with guidance on harassment in the workplace from the U.S. Equal Employment Opportunity Commission (EEOC), which writes, “Although employers generally are not responsible for conduct that occurs in a non-work-related context, they may be liable when the conduct has consequences in the workplace and therefore contributes to a hostile work environment.”
As a whole, the landscape of social media is fraught, and employers have little choice but to address associated risks proactively. Otherwise, businesses risk exposing themselves to reputational damage, legal liabilities, and internal conflict.
The first step in preventing and mitigating social media misconduct is establishing a clear and defensible social media policy. If nothing else, employees must understand that their personal, off-duty use of social media can have work-related consequences, but it’s also up to the employer to clarify what those consequences might be, and why. Employers also need to think about their own business reputation management, or how to prevent employee misuse of social media from spiraling into a PR crisis for the company.
All of this is clearly an area of weakness for most employers. While over half (64%) of workplaces have a specific policy regarding social media use at work, HR Grapevine says 35% still do not have set policies. A well-crafted “social media policy” serves as a cornerstone for managing potential conflicts between online behavior and workplace standards and, well constructed, can ensure employee protections on social media against harassment and other issues.
Define what constitutes appropriate and inappropriate social media activity and include examples to clarify any ambiguities. For example, another Pew Research survey found that nearly a quarter (24%) of employees use social media to support professional connections and a fifth (20%) use it to get information that helps them solve work-related challenges. If you are willing to allow these kinds of uses, specify them in your policy.
Just make sure disallowed activities don’t run afoul of relevant regulations. For example, some employee use of social media may be protected activity, including concerted discussion of wages, working conditions, and terms of employment between employees. The National Labor Relations Board has warned employers not to punish employees for “protected concerted activity” like this.
That said, this can be a gray zone. “An employer could terminate an employee for saying, ‘This employer’s a cheapskate, or cheats on my wages, or is stealing my tips,’ or whatever the issue is,” argues attorney Mark Kluger with Kluger Healey in New Jersey. “If it’s not clearly part of an ongoing dialogue between that employee and co-workers, it’s not protected by the National Labor Relations Act.”
Here, the key is to be consistent and fair in both enforcement and disciplinary actions. Unfortunately, no two social media violations are likely to look exactly alike, which can make it challenging to set uniform policies. “There’s no one-size-fits-all,” attorney John Polson, a partner with California-based Fisher Phillips, told the Society for Human Resource Management. “You need a policy tailored to your specific business. And you don’t want to be too broad; you don’t have to have a policy for every decision you make.”
Many employers will also end up having to weigh competing priorities. For example, an employer may face potential liability for not taking action if a court later determines the social media use created a hostile work environment (as happened in the Okonowsky v. Garland decision). But the employer might equally make itself vulnerable to claims of discrimination, retaliation, or invasion of privacy if it acts against an employee on the basis of their social media use. And don’t forget public relations and the need for business reputation management. As a result, policies should leave employers enough room to be able to weigh all the dimensions of a given incident before rendering a final decision.
“Never assume an employee understands or should understand what could go wrong with social media,” says Johnny C. Taylor, Jr., president and CEO of SHRM. Conversations with employees here can be delicate. Most employees tend to think of their personal social media use as separate from work, and while 57% agree that social media use in the workplace is unprofessional, 56% also believe it’s unethical for employers to scan or scroll through their workers’ personal social media, according to a 2023 Monster.com survey.
Nevertheless, employers cannot expect employees to adequately govern their own social media use if they don’t know how or why they should. Try to frame conversations around benefits to workers, emphasizing how the policies can offer the employee protections on social media.
Ultimately, addressing social media misconduct is about more than enforcing rules; it’s about building a workplace culture that values respect, accountability, and open communication. Employees should feel supported in expressing themselves while understanding the impact of their actions on their colleagues and the organization.
To dive deeper into this critical topic, don’t miss our upcoming webinar on “Addressing Social Media Misconduct in the Workplace.” Learn how to protect your business, support your employees, and foster a culture of accountability in the digital age. Register today and gain access to actionable insights and practical tools for handling these challenges effectively.