Like it or not, social media is here to stay. During the first quarter of 2014, Facebook had more than 1.23 billion monthly users, and usage of other social media websites like Twitter and Instagram continues to increase. The proliferation of mobile devices has added fuel to the fire. In fact, studies show that individuals who conduct social networking on mobile devices are twice as active on social media websites as nonmobile users. With numbers like those, it’s no surprise social media issues have crept into the workplace. 
Here are some key areas you must consider (preferably with the help of a thoughtful, written social media policy) when addressing the new frontier of social media in the workplace.
Company social media activity
More and more employees are using social media at their employers’ request to promote company events, services, and products. Make sure employees understand that they are speaking on behalf of their employer. Establish rules that are specific to employer-sponsored social media posts. Generally, those rules should be more restrictive than rules regarding employees’ personal social media activity.
Also, make sure you and your employees are following the Federal Trade Commission’s (FTC) rules on advertising disclosures in promotional posts. For more information on the FTC’s social media disclosure rules, visit www.business.ftc.gov/documents/bus41-dot-com-disclosures-information- about-online-advertising.
Publicly held employers, watch out
The Securities and Exchange Commission (SEC) recently investigated a Netflix executive who used his personal Facebook page to announce that Netflix streamed one billion hours of content in June 2012. As part of its investigation, the SEC issued guidance stating that a publicly held company may be liable if certain employees post important company information on their personal social media accounts, especially if the company has not designated social media as a “recognized channel of distribution” for communicating with investors and the company does not monitor employees’ social media activity. Based on the SEC’s guidance, publicly held employers may want to track top managers’ private social media activity.
Social media as a screening tool
Fifty-three percent of employers use social networking websites to research potential employees, and 40 percent of employers admit to finding information that led them not to extend an offer of employment. This type of prehire investigation may allow you to “dodge a bullet” by passing on applicants who have displayed poor judgment or falsified credentials. However, online “snooping” may lead to the discovery of protected characteristics (e.g., disability, sexual orientation, or religious beliefs) or associations that could result in discrimination claims.
Also, be very careful how you acquire information about applicants. For instance, in many states, it is illegal for an employer to require employees or applicants to reveal passwords that enable the employer to search an otherwise private social media account.
‘My boss is such a . . .’
Then, there is always the question of what to do when employees’ inappropriate social media activity comes to light. Can you use inappropriate social media activity as a basis for disciplinary action and termination? Before proceeding with disciplinary action, ask yourself two questions: First, is the conduct prohibited by a clear and consistently enforced company policy? Second, is the conduct protected by law?
For the second question, bear in mind that employees’ social media posts may constitute protected activity under antidiscrimination and whistleblower laws. Also, the National Labor Relations Board (NLRB) has been actively enforcing Section 7 of the National Labor Relations Act (NLRA), which protects employees’ right to engage in concerted activity, by cracking down on employers that maintain social media policies that discourage employees from communicating with each other regarding the terms and conditions of their employment. That issue touches on some particularly gray areas, so it’s best to get advice before terminating employees because of their social media activity.
Kara Shea is a partner in Butler Snow’s Nashville office and the practice group leader in the labor and employment group. She may be reached at kara.shea@butlersnow.com.