Social Media and the Workplace: Legal, Ethical, and Practical Considerations for Management

Abstract

The prevalence, widespread use, and influence of technology in society today, including the workplace, is undeniable. Computers, the Internet, email, and cell phones are now indispensable parts of social interaction as well as business; and their sophistication, uses, and reach are expanding continually. Social media has completely transformed the life of many, many people. In particular, social media has materially changed the way in which people communicate. Social media affords people readily and easily usable ways to stay in touch with family, friends, colleagues, and co-workers, including the ability to rapidly share information and commentary. Business today is also taking advantage of social media – for marketing, management, and human resource purposes. Furthermore, the conception of the “workplace” has been broadened with the advent of technology and especially the existence of “telecommuting.” “The increase in work outside the office…has further blurred the boundary between work and home, public and private” (Gelms, 2012, p. 268). Social media, therefore, is being widely used in business and professional as well as personal settings. Of course, social media sites and accounts can contain some very personal and intimate information about people. Consequently, employers, employees, job applicants, as well as the legal system, are confronting with ever-increasing frequency the advancement of technology, the growth and proliferation of social media, and the challenges and difficulties presented by the use of social media and the modern-day workplace. Courts as well as legislative bodies, however, are now just beginning to address legal claims caused by social media and employment. Moreover, the extensive use of social media in the workplace also raises serious moral and ethical concerns.

Given the popularity, prevalence, sophistication, and ever-growing use of social media, it is no surprise that social media in an employment context raises many difficult, as well as novel, legal, ethical, and practical issues. This article, therefore, is a legal, ethical, and practical examination of social media in employment. The legal section of this article is a very substantive one where the authors extensively address the legal ramifications of social media in the private employment context. Statutory laws – federal and state, common law doctrines, as well as proposed federal and state laws, are examined to ascertain their applicability to social media policies and practices in employment. Case law, regulatory law, as well as legal and management commentary, are also examined to determine how a wide variety of laws apply, and could apply, to social media in the workplace. Case illustrations of legal principles being applied to social media workplace disputes as well as hypothetical examples are provided by the authors. As noted, the focus of this article is on the private employment context; however, the authors do briefly address some of the seminal federal constitutional issues that would arise in the public sector workplace. Even if a practice is legal, the question arises, or should arise, as to whether it is moral. Accordingly, the moral concerns regarding social media and the workplace will be addressed in this article through the application of several established ethical theories. The authors define, explicate, and apply these ethical theories to the subject matter of social media and employment to determine whether it is moral to use social media to make employment decisions. These ethical theories will be Ethical Egoism, Ethical Relativism, Utilitarianism, and Kant’s Categorical Imperative. Next, based on the aforementioned legal and ethical analysis, the authors discuss the practical implications for employers, managers, employees, and job applicants. The authors provide some succinct suggestions for employees and job applicants as to proper social media practices. The authors then make extensive recommendations for employers and managers on how to achieve certain business objectives but without violating the law or treating job applicants and employees in an immoral manner. The authors end their work with a brief summary and some concluding comments and observations. The authors, finally, as a sample in Appendix A, have included a company social media policy approved by the National Labor Relations Board.

Key Words: social media, social networking, Facebook, discrimination, harassment, retaliation, civil rights, Title VII, ADEA, ADA, labor law, NLRA, concerted activities, electronic communication privacy acts, lifestyle protection laws, tort, invasion of privacy, defamation, ethics, morality, employment, employment at-will, public policy, employee, job applicant, employer, management.