Social Media Land Mines: Employer Responsibilities and Employee Rights

The construction industry is filled with avid consumers, and users, of social media. However, these platforms present companies with numerous legal quandaries. 

Employers are strongly advised to invest the time and resources upfront to understand their responsibilities, as well as their employees’ rights. Then, they can leverage the power of social media in a positive way to increase their brand awareness and reputation in the industry without the stress of triggering a social media land mine.  

Hiring Process
While it is tempting to find a job candidate on Facebook prior to the initial interview, it’s best not to utilize social media channels for any formal or informal due diligence. Federal, state and local laws prohibit employers from making hiring decisions based on certain characteristics of a candidate, such as race, religion, gender, sexual orientation and disabilities. Typically, employers shield themselves from this liability by asking proper, non-discriminatory questions on employment applications. Employers that use social media during the hiring process may expose themselves to discrimination claims if a candidate’s account reveals information that cannot be unseen (e.g., race, religion, national origin, sexual orientation or disability).

For example, an employer looks up a candidate’s social media profile and discovers he has a same-sex spouse. After an interview, the employer determines someone else is a better fit for the company. If the candidate then sues the company because he believes he was discriminated against, the employer loses the defense that sexual orientation did not enter into the hiring process because it viewed the candidate’s social media profile. Therefore, the best way to avoid this potential legal battle is to make hiring decisions based solely on applications, résumés and interviews. 

Employee Handbook
It is absolutely necessary for today’s employers to guide employees on how they are expected to conduct themselves in an online environment. While this policy should in no way strive to restrict the freedom of speech, it can be used as a vehicle for informing employees that a policy exists to protect confidential information and prevent online harassment.

It is worth noting that employees are permitted, under Section 7 of the National Labor Relations Act (NLRA), to engage in protected concerted activity, which includes communication with coworkers regarding the terms and conditions of their employment, even on these online platforms. An action as simple as “liking” another employee’s comment may be considered a concerted action if the message pertains to the topics of pay, working conditions or other issues employees are legally entitled to discuss. Think of it as two people chatting in the breakroom; however, this conversation by the watercooler just happens to be on Facebook. 

If an employer takes adverse action against an employee in this situation, the employer will likely be in violation of the NRLA and can set off a series of legal implications. One way a company can protect itself is by including a disclaimer within its social media policy. The disclaimer, while not absolute, should recognize that the company respects employees’ rights to express opinions and the terms of their employment in a public forum. 

Because there is a very fine line between regulating employee conduct and simply encouraging employees to use their discretion when communicating in an online environment, it is highly advised employers consult with their legal counsel on both the development and implementation of a social media policy. Legal counsel will be able to cite recent state and federal laws, cases and memorandums to help shape a comprehensive and effective policy.

Evidence Preservation
Employers also need to consider that any statements made on social media are public proclamations and can be revisited in a courtroom. Online statements should be reviewed carefully to determine the impact they may have from all angles. If an employer finds itself in a legal battle, any social media materials—even a post from a year ago—may be considered fair game. This includes company-sponsored posts, interactions with employees or clients, and even interactions with audience members outside of the employer’s network. 

Therefore, it’s crucial to review, preserve and document all social media engagements. In an effort to fully protect the organization, consider screenshotting content, which can serve as a back-up should a comment or post be deleted. While this may seem excessive, a court views it as the employer’s duty to preserve all evidence, and failing to do so may result in additional penalties or litigation regarding the destruction or alteration of evidence.

Social media law is a relatively new area for companies active in the construction industry, and the laws around this topic, much like the networks themselves, are evolving at a rapid pace. Legal counsel should be poised to help businesses efficiently develop a social media policy and be available to provide advice on content before it’s posted, should there be any concerns on the subject. 


Jackie Wheeler is an attorney in the Dallas office of Munsch Hardt Kopf & Harr, P.C. For more information, email jwheeler@munsch.com or visit munsch.com.