Social Media in the Workplace: Employer Rights and Obligations

The use of social media by employees can be a minefield for employers. From the potential of social media activity creating a hostile work environment to claims of wrongful termination stemming from terminating employees based on social media activity, employers must proceed with caution when it comes to social media activity, being mindful of protecting employees and the company, without overstepping.  

In this post, we dig into some related to social media use by employees, both on company and personal time. We also consider how a social media policy may help reduce those risks, while considering what such a policy can and cannot restrict.  

Risks of Social Media in US Workplaces 

Employee use of social media presents employers with broad risks. Below is an overview of the most common risks:  

Risk of a Hostile Work Environment 

Employee posts containing derogatory, racist, sexist, or otherwise offensive or inflammatory content about coworker(s) or protected classes can create a hostile work environment. Even if a social media post or comment is made on a personal social media account while not at work, this social media activity can spill into the workplace and lead to complaints of harassment and discrimination.  

The Okonowsky Case 

While social media use is not a new topic, the Ninth’s Circuit’s decision in Okonowsky in 2024 threw a spotlight on how social media use on personal time could give rise to a hostile work environment. In that case, Lindsay Okonowsky, a psychologist at a federal prison, discovered that Steven Hellman, a corrections lieutenant, posted sexually harassing and violent content about her on his personal platform. These posts were viewed and discussed by many employees at the Federal Bureau of Prisons. Leadership ignored Okonowsky’s complaints about the online harassment, going so far as telling her the page was “funny.”  

The court concluded that “offsite and third-party conduct can have the effect of altering the working environment in an objectively severe or pervasive manner,”  and found “evidence of management-level, intraworkplace ratification of or acquiescence to offsite conduct by employees, customers, or third parties can be particularly relevant to both the hostile work environment and employer liability elements of a Title VII claim.” You can read more from the decision here.  

The key takeaway from this decision is that employers have a legal obligation to act if employees are harassing or threatening other employees on social media – even if done outside of work hours or on personal accounts.  

Wrongful Termination Claims 

On the other hand, firing an employee for their social media activity can be complex and occasionally lead to wrongful termination claims. This is especially true if the social media activity and subsequent termination infringe on legally protected activities under Section 7 of the National Labor Relations Act (NLRA). The NLRA protects employees when   discussing wages, hours, and working conditions with coworkers, including on social media. Firing an employee for complaining about low wages on Facebook, for example, could be a violation of their rights under the NLRA. 

Intellectual Property Infringement 

Employees may inadvertently or intentionally share confidential business information, trade secrets, or copyrighted material on social media. For instance, a graphic designer who posts a sneak peek of a client’s unreleased product, or a manager who shares a confidential company sales report, could expose the company to significant intellectual property losses or disputes. This is a reminder to prohibit activity like this in the company’s employee handbook or confidential information agreement, as well as in a well-drafted social media policy.  

The Federal Trade Commission’s Endorsement Guidelines 

The FTC requires disclosure of certain endorsements. If a business encourages its employees to post positively about its products on social media, it’s a good practice to have those employees clearly state that they work for the company. Failure to disclose relevant endorsements can result in significant fines and enforcement actions from the FTC, so it’s better to err on the side of caution. You can read more about the FTC’s endorsement guidelines. 

Implementing a Workplace Social Media Policy 

A well-drafted social media policy should serve as a clear guide for employees, outlining expectations for online behavior while respecting their legal rights. Here are key components to consider when developing such a policy: 

• Confidential and Proprietary Information: The policy should explicitly prohibit the sharing of confidential company information, trade secrets, and other non-public data on social media. Additionally, no photographs or videos taken in the workplace should be published without the employer’s consent.  

• Harassment and Discrimination: The policy must state that the company’s anti-harassment and anti-discrimination policies apply to all social media posts, regardless of when or where they are made. It should prohibit employees from posting derogatory, sexist, racist, or other disparaging comments about coworkers.  

• Company Intellectual Property: The policy should clarify that intellectual property rights, including copyrights and trademarks, must not be violated by employees’ social media activities.  

• Workplace Conduct: The employer should reserve its right to monitor employee social media accounts and activities that are public, conducted using company devices, or that take place during work hours. It should also prohibit posting content that violates company rules, is disruptive to the workplace, or is harassing. 

• Media and Public Relations: Employees should be instructed to seek permission before speaking to the media on behalf of the company. 

• Endorsements should be disclosed. Endorsements that may fall within the FTC’s purview should be disclosed proactively and ideally approved by the company.  

• Policies for publishing to the company’s social media. The policy should outline which roles are permitted to publish to the company’s social media, alongside any restrictions on posting and processes for getting permission to post if it’s outside your usual scope of duties. The policy should also address ownership of content created relating to the workplace. These provisions will vary depending on whether the employer wants to own that content, attribute content to an employee, or allow the employee to retain ownership of that content. 

• Non-disparagement clauses.  The policy should prohibit employees from posting negative comments or commentary that may negatively impact the employer’s reputation or branding. This should include restrictions about how employees talk about the business, its clients, and other employees. However, it is important that these provisions don’t prevent the disclosure of workplace harassment or discrimination (read more on this here), or other protected rights, including those granted under the National Labor Relations Act.  

A note about employee-generated content – a growing trend 

When posting about an employer, companies should require employees to identify themselves as an employee of the company while making it clear they do not represent the company. This is particularly important for companies that encourage employee generated content (EGC). EGC is any content created and shared by employees about their company, which benefits a business by providing a more authentic, trustworthy, and cost-effective way to build a brand, attract talent, and increase engagement. It’s becoming increasingly common, particularly on LinkedIn, since the algorithm tends to prioritize content created by individuals compared to company or branded content.   

Creating your workplace’s social media policy 

We recommend that employers consult legal counsel before implementing a social media policy. This is particularly important if you used template documents to draft the policy or if you intend to rely on the social media policy to discipline or terminate an employee.  

If you need assistance implementing a social media policy in your workplace, reach out. We’re here to help!  

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