Is it Legal to Analyze Employee Behavior by Monitoring Social Media?

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The role of social media in the workplace may be of concern to people who are getting a human resources degree. In the early days of the internet, it was unusual for an employer to discover an employee’s online presence at all, but these days, when nearly everyone uses at least one social media platform, employers may make decisions about whether or not to hire people based on their social media presence. They might also terminate people as a result of how they behave on social media but is any of this legal?

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Reasons to Monitor

There are several reasons employers might want to monitor employee usage of social media. One of those reasons is to ensure the employee is not actively disparaging the brand in some way. Another is to make sure the employee is not behaving in a way that is so egregiously bad that it reflects negatively on the employer. Examples of this might be making offensive statements on social media or cyberbullying. A high-profile example of the former was that of Roseanne Barr, whose TV show was canceled by ABC in 2018 after she sent a racist tweet. An employer might also monitor an employee’s social media if the employee claims to be sick or out on disability. If the employer finds photos or other evidence that the employee was lying, the employer might discipline or terminate the employee. Finally, employers may monitor social media to make sure employees are not spending the day posting online instead of working.

The Legal Landscape: Work-Related Posts

The National Labor Relations Board, the federal agency that upholds the National Labor Relations Act, has addressed the role of work-related employee posts on social media in several cases. The NLRB found that work-related postings may qualify as protected activity if they involve discussing issues such as wages or work conditions with other employees. However, merely complaining about the workplace on social media may not be protected. The NLRB has also found that some employer policies regarding employee social media usage are unlawful. People with a human resources degree need to thoroughly understand NLRB regulations around social media in the workplace so their company’s rules remain compliant.

The Legal Landscape: Outside of Work

There is an additional question as to whether employers have the right to monitor what employees do outside of work hours. Employers need to be aware that state laws vary, and even different jurisdictions may have different laws. The Society for Human Resource Management points out that in some states, an employer might be able to fire an employee if that employee engages in behavior after hours that is contrary to the aims of the company. Therefore, for example, the American Lung Association might be allowed to fire a smoker.

Depending on where an employee lives and what the employee’s social media activity consists of, monitoring and disciplining an employee based on social media may be a gray area. In order to protect a company from liability, it is important for people with a human resources degree to understand the specific legal implications of monitoring social media in the workplace when creating company policy and when dealing with employees.

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