Navigating Social Media Legal Issues in the Workplace: A Guide for Business Owners

The rise in popularity of social media platforms has people clamoring for clout, and in this pursuit of internet fame, some have found themselves in hot water at work. From a tech worker getting fired for uploading a video to TikTok with a company meeting heard in the background,¹ to a Walmart employee being fired for filming a TikTok showcasing a day of inventory work,² to action being taken against labor and delivery nurses who decided to share their patient “icks”,³ there are countless examples of employers taking action around employee behavior on social media in the workplace.

While negative consequences around employment for social media users isn’t necessarily a new issue fueled entirely by TikTok (remember the Taco Bell worker who was fired in 2013 after a photo of him licking a stack of taco shells went viral?⁴) social media continues to be a “wild west” of sorts when it comes to employment and legal issues. Issues can pop up on Twitter, Facebook, Instagram, LinkedIn and beyond. As a business owner or an HR professional, it’s essential to understand what challenges you might run into around employee social media use, as well as how to effectively navigate these social media legal issues when they do arise. With the goal of protecting both your company’s reputation and your employees, let’s delve into the intricacies of social media legal matters and explore how you can more effectively manage them.

Social media legal issues encompass a range of challenges that can arise when employees engage with these platforms in the context of the workplace. While employers cannot discriminate against employees for their personal social media activity, employee social media privacy laws and rights are a complicated subject.⁵ From defamation and privacy violations to infringement on intellectual property rights and harassment, it’s important to understand these issues and the specific laws that social media use can fall under.

There are several laws you should become familiar with as a business owner or HR professional to be more successful at navigating issues on the web and social media challenges:

• Anti-SLAPP statutes: SLAPP stands for “Strategic Lawsuits Against Public Participation.” These laws provide defendants protection from meritless or frivolous lawsuits brought against them for exercising First Amendment rights⁶
• Communications Decency Act: Originally enacted in 1996 as a way for Congress to regulate pornographic material on the internet, Section 230 of the act addresses free speech and business concerns while aiming to encourage a safer and open internet⁷
• Computer Fraud and Abuse Act: The CFAA is related to employees accessing computers or data without authorization⁸
• Electronic Communications Privacy Act: The ECPA protects wire, oral and electronic communications and applies to email, phone calls and electronically stored data⁹
• Stored Communications Act: The SCA provides customers of network service providers with protections from government access to stored account information, including internet service providers (ISPs)¹⁰
• The National Labor Relations Act: This act encourages collective bargaining and guarantees the rights of employees to participate and engage in activities seeking better working conditions¹¹
• Lanham Act: This is also known as the Trademark Act of 1946 and provides protection and guidance around trademarks and service marks¹²
• Federal Trade Commission Act: This act permits the FTC to investigate unfair or deceptive business practices¹³
• Copyright Act: This act provides the framework for copyright laws and protects original works in a “tangible medium of expression” from infringement issues¹⁴

This is not an exhaustive list of laws that may apply to social media in the workplace, but is a good starting point to understand how you can start navigating this topic.

Taking the time to better understand complex laws might seem overwhelming, but the consequences of overlooking social media legal issues can be severe. Failing to understand the laws and how to proactively prevent employees from inappropriately using their personal social media accounts in the workplace can result in legal disputes, costly lawsuits and irreparable damage to your company’s reputation. The viral nature of social media means that a single post or comment can quickly escalate into a PR nightmare. Legal battles can drain resources and tarnish your brand image, potentially driving away customers and affecting your bottom line.

Planning ahead is your best course of action around preventing social media issues. Check out some ways to keep your employees in the know regarding the behaviors you expect of them on social media platforms.

To mitigate serious risks for business, proactive measures are essential. One of the most effective steps a business owner or HR professional can take is to establish clear and comprehensive social media policies. These policies set the guidelines for employee behavior on social media platforms and help prevent potential legal issues. Understanding the laws listed above can help you not overstep your bounds regarding personal social media use when drafting these policies.

Key components of a robust social media policy include:¹⁵

Definition of Roles
Employees will play two main roles regarding your company on social media and posting online content—official or unofficial. Employees can only speak on behalf of the company in an official role on the company’s social media account (typically only dedicated employees will have access to these channels, like a media manager or a professional in social media marketing).

Acceptable Use Guidelines
Clearly outline what is considered acceptable behavior on social media platforms while representing the company in an official capacity, as well as what type of content can be shared and what is considered inappropriate.

Confidentiality Rules
Emphasize the importance of maintaining confidentiality about company matters, trade secrets and other sensitive information. Specify what information should never be shared online, whether in an unofficial or official capacity.

Consequences for Violations
Detail the repercussions for violating the social media policy—this can range from verbal warnings to more serious actions, depending on the severity of the offense.

While having well-crafted policies is crucial, it’s equally important to educate your employees about the most common legal risks around social media in the workplace. Providing training sessions can help employees understand the potential risks, consequences and the importance of responsible social media website usage. Educated employees are more likely to make informed decisions online, which reduces the likelihood of legal mishaps.

Implementing policies and providing training alone may not suffice. Regular monitoring of social media activity is essential to identify potential policy violations early on. Employing social media monitoring software can aid in keeping track of employees’ online actions related to the company. If violations are detected, it’s important to enforce the policies consistently and fairly. This could involve corrective actions, retraining or even disciplinary measures.

This is an area where knowing the laws around social media restrictions, both at the federal and state levels, is especially important. You must stay up to date on the law to know what you can monitor and what kind of behavior you can legally reprimand.

Navigating social media and the law in the workplace is not a choice, but a necessity. By understanding the potential challenges, establishing comprehensive social media policies, providing employee education and implementing monitoring and enforcement mechanisms, you can protect your company from legal disputes, lawsuits and reputational damage.

Taking proactive steps to understand the law and address these issues is vital. Earning a Master of Jurisprudence in Labor & Employment Law (MJ-LEL) from Tulane University is an excellent way to grow your legal expertise to better face these complex issues. In addition to giving you a strong legal foundation, the MJ-LEL curriculum also addresses modern legal challenges. In the advanced course social media in the Workplace, you will explore the use of creative works within the workplace, particularly in the areas of social media and the internet, branding (trademark, trade dress, etc.) and advertising.

Become a visionary professional who plays a crucial emerging role in the legal profession with your organization—without the need to earn a JD. This program is delivered online and backed by the reputation of the 12th oldest law school in the U.S.

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