Is it legal to screen social media?
Social media is a common part of daily life, but problems arise when employees use work hours and devices for it. This can lead to the sharing of private company info or harmful behavior, impacting the organization and colleagues.
For employers, social media monitoring in the workplace can offer a way to evaluate candidates, protect the company's brand, and ensure a safe and respectful workplace.
Employers are increasingly discovering employee misconduct through social media posts. What actions are they allowed to take, what are the limits, and what should they consider when using these posts?
Ethically, monitoring social media is tricky. Employers may check posts for company protection, but must avoid retaliating against employees for discussing work conditions, which is protected by the National Labor Relations Board (NLRB).
This article will explore how employers can legally monitor employees' social media accounts inside or outside the workplace, as well as the benefits and risks involved. We will also provide practical tips and best practices for implementing effective social media screening while ensuring compliance with privacy laws.
Social media use has grown significantly, leading employers to question whether they can monitor or restrict employees' online discussions about work. Systematic monitoring of an employee's social media posts is generally prohibited in some states, regardless of whether the platform is professional or personal, as it involves processing personally.
But, employers can review individual posts if they suspect an employee has breached their contract, based on information from another employee. The processing of personal data is considered proportionate, as employees have less protection over public posts, according to the GDPR.
While employers can regulate employee behavior during work hours and prevent illegal activities, the rules are less clear when it comes to monitoring personal social media use. The National Labor Relations Board (NLRB) protects employees' rights to discuss wages, working conditions, and union activities online, but individual complaints are generally not protected. Employers must be cautious when creating policies, as the legal landscape continues to evolve, and professional guidance is recommended.
Monitoring public accounts is generally allowed, but accessing private content requires consent. Employers should focus on work-related issues, and respect privacy rights and employees have the right to post freely outside work hours without employer tracking.
Laws differ by region, and employers must ensure their practices align with regulations like the Electronic Communications Privacy Act (ECPA) or General Data Protection Regulation (GDPR).
Employers can use information from social media posts as evidence, even if obtained unlawfully, as long as it doesn’t violate the employee's fundamental rights. The Federal Labour Court has ruled that such evidence can be considered in court based on the right to be heard and free evidence assessment.
Social media platforms like Facebook and LinkedIn are still evolving in terms of employment and privacy regulations. However, a Pew Research Center study found that 34% of employees use social media during work hours to take a mental break.
Employers consider social media monitoring for several important reasons that impact both the workplace environment and the company's broader reputation. By monitoring employees' social media activity, employers can make more informed decisions and address potential risks before they escalate. Below are some of the key reasons why employers might monitor social media:
Employers often use social media monitoring as part of the hiring process. Social media platforms can offer valuable insights into candidates' personalities, interests, and behavior that may not be apparent from resumes or interviews.
For example, an employer might check for red flags like inappropriate language, discriminatory behavior, or evidence of illegal activities. Social media checks help employers assess whether a candidate's values align with the company's culture.
Employees sometimes share posts about their work environment or specific job-related experiences. Monitoring these posts can help employers identify potential safety concerns, harassment, or toxic behaviors that could negatively impact the workplace.
Posts about workplace accidents or safety violations can alert employers to risks they may not have been aware of.
An employee’s social media presence can impact the company’s reputation, especially if the employee posts negative or inappropriate content. For instance, a post that disparages the company, its products, or colleagues could quickly go viral and damage the company’s public image. By monitoring social media, employers can act swiftly to address any content that might harm their brand.
Employees might accidentally or intentionally share confidential company information on social media. By monitoring social media activity, employers can spot leaks of sensitive data or breaches of confidentiality that could lead to legal problems. This is especially important in industries dealing with intellectual property or private customer data.
Employers may also use social media posts to verify if a sick employee is actually on vacation or to address issues like defamation or data leaks. In these cases, an employee's social media profile can offer useful information.
Social media monitoring can help employers spot signs of dissatisfaction or disengagement among employees. If an employee is posting complaints about their job or sharing negative experiences online, it could signal potential issues that need to be addressed. In some cases, monitoring can even prevent employees from engaging in activities that could harm their careers, such as venting frustration in a public forum or making threats online.
Employers may use social media monitoring to ensure that employees are adhering to the company’s code of conduct and following established policies regarding online behavior. By monitoring social media, employers can reinforce expectations for professional conduct, particularly when it comes to sharing work-related information, engaging with the public, or representing the company online. Monitoring can also help employers maintain consistency in enforcing their social media policies.
Monitor employee social media activity, focusing on posts, comments, and edits to prevent leaks of sensitive information, such as intellectual property updates. Watch for signs of dissatisfaction that could indicate an increased insider risk.
Ensure social media isn't being misused for inappropriate behavior during work hours. Additionally, identify employees who support colleagues through chat collaboration, as they may be hidden leaders worth promoting.
Employers must navigate several legal and ethical considerations when monitoring employees' social media profiles. Below are key practices employers should follow.
Privacy Laws: Employers need to follow privacy laws when monitoring social media. These laws differ by country and region, but they usually aim to stop employers from invading employees' personal lives. Before monitoring social media, employers should know their legal responsibilities.
Employee Consent: In many cases, employees must consent to monitoring, either through an agreement or a clause in their employment contract. Obtaining consent helps ensure compliance with legal requirements and fosters trust between employers and employees.
To avoid legal issues, employers should have clear policies outlining their social media monitoring practices. These policies should explain:
Employers should share these policies during onboarding and update them regularly to reflect changes in laws or company practices.
A well-defined social media policy ensures employees understand their rights and responsibilities when using social media, both inside and outside the workplace. Clear communication about monitoring practices can prevent misunderstandings and provide legal protection for the employer.
The policy should define acceptable online behavior, ensuring it aligns with business needs and avoids overly broad restrictions on employees' rights to discuss workplace issues. Employees should be reminded to protect sensitive company information, as once posted, it can be difficult to remove. The policy must also comply with privacy, discrimination, and defamation laws, and employers should educate employees about the policy’s purpose and consequences for violations.
Create a social media policy to protect your business from risks posed by online posts and Inform employees that the company may monitor public posts and encourage them to keep personal content private. Focus monitoring on illegal activities like harassment or discrimination, not personal details. Avoid asking employees to promote the company on personal accounts or use branded images.
Employers need to follow local, national, and international laws when monitoring employees' social media activity. Different regions have specific rules to protect employee privacy. For example:
Employers should also respect any guidelines set by labor unions or industry regulators. Violating these laws can lead to penalties, lawsuits, or damage to company's reputation. Ensuring lawful and respectful monitoring helps maintain employee trust and avoids legal risks.
Employers should focus on monitoring content that is relevant to the workplace. Monitoring personal posts unrelated to work can lead to unnecessary legal and ethical issues. Social media checks should be confined to work-related behaviors, such as violations of company policies or inappropriate conduct.
Be cautious when reacting to personal or work-related posts, employee complaints about work conditions may be protected by the NLRB, and any retaliation, like discipline or termination, is prohibited. Avoid addressing personal issues unless the employee has directly shared them with you.
Employers can use third-party tools or services like Ferretly to monitor social media activity efficiently and responsibly. Ferretly offers AI-powered solutions that automate social media screening, helping identify potential risks such as data leaks, misconduct, or reputational concerns. These tools ensure consistent monitoring while reducing human bias.
To maintain compliance with legal standards when using tools like Ferretly:
Using tools appropriately allows employers to protect their business while respecting employees’ privacy rights.
When a violation occurs, employers must address it quickly and professionally. This might include counseling, discipline, or other actions according to the company's policies. It's crucial that responses are fair, proportionate, and aligned with the organization's values.
Read Also: How do Social Media Background Checks Work
Employers can only legally monitor specific aspects of employees' social media activity. The following areas are typically fair game:
Using tools like Ferretly for automated social media screening can help ensure that monitoring remains compliant, consistent, and fair while protecting both the company's and employees’ rights.
Many employers check social media—90% review candidates' accounts, and 79% have dismissed candidates based on what they found and a CareerBuilder survey shows 57% are less likely to interview candidates without an online presence. Employers also monitor employees' social media to protect their reputation, as a single negative post can harm the business.
Some employers worry about the risks of monitoring social media but use AI-driven third-party services to screen for red flags without manually reviewing posts. These tools help businesses focus on potential issues, like leaks of sensitive information, while avoiding irrelevant content. With the risks of damaging posts—such as inappropriate content or negative remarks—businesses must monitor social media to protect their reputation and brand integrity.
Social media monitoring provides several advantages for employers, including:
Social media can boost your business by engaging customers, driving traffic, and building brand awareness. Employees can also help as brand ambassadors, but there are risks. Employers can be held liable if employees post false statements or rumors, potentially leading to defamation claims.
Learn more about how Ferretly's social media screening services can help your business protect its reputation and streamline your recruitment process.
Read Also: Benefits of Social Media Screening
State laws protect social media privacy, preventing employers from accessing private accounts without consent. However, if information is publicly posted, employers can view it but must still follow rules.
Employers must avoid discrimination based on personal details like sexual orientation or pregnancy, and must comply with the Fair Credit Reporting Act when using social media for background checks.
Off-duty conduct laws in some states protect applicants from discrimination based on legal activities, such as political views or alcohol use, discovered via social media.
Although social media monitoring has its advantages, improper practices can lead to significant risks.
By using Ferretly for social media monitoring, employers can reduce the risks associated with improper monitoring while ensuring legal compliance, fairness, and efficiency in their practices.
In certain event-related situations, such as during a workplace crisis, a public relations issue, or a major company announcement, employers may need to adjust their social media monitoring practices. These situations often require immediate attention and action. Monitoring employees' social media activity during these times can help ensure that employees are not inadvertently contributing to the crisis or spreading inaccurate information.
This can help identify employees who may be posting inappropriate content, spreading rumors, or engaging in behavior that could escalate the situation. It also ensures that employees remain compliant with internal policies during stressful or highly public events.
However, employers should approach event-related monitoring with caution, as it can potentially infringe on employees' rights or create further tensions in the workplace. Being transparent about monitoring during such events and adhering to legal guidelines is crucial to prevent backlash or legal complications.
Evaluating an employee's social media posts can be a valuable tool for proving a breach of contract and preparing for potential dismissal disputes. However, employers must ensure the evaluation remains proportional and limited to specific posts. It is also recommended to document the reasons for and scope of the review, as well as the assessment of the posts, to justify the legitimacy of the data processing if needed later.
To ensure social media monitoring is done ethically, effectively, and legally, employers should follow these best practices:
Social media screening is used in various industries to improve hiring, enhance workplace safety, and maintain compliance. Below are some common use cases where social media monitoring plays an important role:
Read Also: Do Colleges Look at Social Media
Employees also have a responsibility to protect their own social media privacy. Below are several practical steps employees can take to safeguard their personal information:
Ferretly offers AI-powered social media screening solutions that help employers efficiently and legally monitor employees' social media activity. By automating the process and focusing on relevant content, Ferretly ensures compliance with privacy laws while providing actionable insights for HR professionals and managers.
For a demonstration of how Ferretly can simplify your social media screening, request a demo today and see how our AI-powered solutions can benefit your organization.
No, employers generally cannot take pictures of employees without their knowledge or consent, as it may violate privacy rights. In many jurisdictions, employees have the right to expect privacy in the workplace, and unauthorized photography could be considered an invasion of privacy.
However, there may be exceptions in specific circumstances, such as for security purposes (e.g., surveillance cameras in common areas). Employers must also ensure compliance with local laws and regulations, including obtaining consent if required. It's always advisable for employers to establish clear policies regarding the use of cameras or photography in the workplace.
Monitoring employees' social media is a business decision that should align with the company's values and legal obligations. It can offer significant benefits, such as protecting the company's reputation and ensuring compliance with workplace policies.
Posts related to workplace misconduct, violations of company policies, inappropriate content, or anything that could harm the company's reputation are typically flagged during social media screening.
Ferretly typically provides social media screening reports within a few hours to a few days, depending on the scope of the monitoring.
Industries such as education, law enforcement, gig economy, and recruitment benefit significantly from social media screening. It helps ensure that candidates align with the company's standards and that employees' behavior meets expectations.
Yes, employers should inform employees about the monitoring process to foster transparency and ensure compliance with privacy laws. Having a clear policy in place helps manage expectations and builds trust.
Yes, social media screening is legal when done in accordance with applicable laws, including privacy regulations and employee consent requirements. Employers must ensure that their monitoring practices respect employees' rights.
Social media use by employees can both enhance collaboration and productivity, but it may also lead to distractions. While employees who engage with social media are often more engaged, they are also at a higher risk of leaving their jobs for new opportunities.
Developing a social media policy should involve surveys and focus groups to balance its benefits with the risks, especially regarding harassment or discrimination. Employers should be cautious when monitoring social media, as First Amendment protections apply differently to public and private sector employees.
While federal law does not prohibit employers from monitoring social media, transparency in monitoring practices and clear guidelines on acceptable use are essential. Policies must respect employees’ rights, including their right to discuss working conditions under the National Labor Relations Act. Employers should also educate employees on the importance of protecting proprietary information and complying with privacy laws.