Excerpted from a Constangy Brooks Smith & Prophete LLP Blog by Robin Shea

Did you know this past Sunday was “Social Media Day”? Neither did I.

After all this time, social media continues to get employees and employers in trouble. Here are six tips for employees, followed by four tips for employers. Following these tips may not always keep you out of hot water, but they’ll certainly help you stay cool.


No. 1: Know your rights. You may have heard of the First Amendment and how it guarantees freedom of speech. That is kind of true, but it’s also misleading because the First Amendment doesn’t shield you from all repercussions from what you say. For example, if you post on Facebook that your boss is an idiot, and your boss sees it and gets mad, your boss can fire you without violating the First Amendment, right? Right. The First Amendment protects you from having the government throw you in jail for expressing your opinions. But it won’t protect you from losing friends, facing social backlash, or even losing your job.

No. 2: Steer clear of political debates. If you enjoy posting about politics, watch out, especially in today’s climate. Regardless of what you say, political posts are likely to upset half of your friends or followers.

No. 3: Don’t post about sex or illegal activity. If you must share about sex or illegal activities, avoid doing it on social media. Posting about sex could be deemed harassment if seen by co-workers who are offended.

No. 4: If you must overshare, unfriend or block your co-workers first. If you just can’t resist posting something risqué, then unfriend or block your co-workers and crank up those privacy settings as far as they will go.

No. 5: You have the right to remain silent. Anything you say can and will be used against you in the workplace. Always assume that your social media posts could come back to haunt you. Employers and online vigilantes are always watching.

No. 6: On the other hand, boring is good. If your posts are about cute babies, the buffet at the Golden Corral, your adorable Labradoodle Maximus, and happy birthday wishes (but nothing about their ages!), you’re probably in the clear.


No. 7: Understand your rights. Generally, you have the right to act against an employee for inappropriate social media posts that offend co-workers, disparage your business, disclose confidential information, or damage your company’s reputation. You can also take action based on posts that are discriminatory or harassing based on race, sex, national origin, religion, age, or disability.

No. 8: Seek legal advice. Always consult with employment counsel before acting. Posts related to terms and conditions of employment may be considered “protected concerted activity” under the National Labor Relations Act.

No. 9: Ignorance is bliss. Prohibit, or at least strongly discourage, your managers and supervisors from being “friends” or “contacts” with employees on social media. Otherwise, they might learn more about their employees than they really need or want to know. For example, that Jane is taking anti-depressants. Or that Joe belongs to a bizarre religious cult. Ignorance can be bliss.

No. 10: Be fair and consistent. Hold all “similarly situated” employees to the same standards of conduct that apply to social media. You may need to be stricter with higher-ups who violate policy.

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