United States: A Supervisor's Guide To Social Media, Part One

Over the past couple of years, we have seen hundreds of articles extolling the virtues and benefits of "social media" for every kind of business. We're told that Facebook, YouTube, LinkedIn, Twitter and other electronic resources will help our businesses reach more potential customers, improve the public's impression of the business, bond existing customers to the company, and improve overall customer satisfaction.

Unfortunately, little has been written to alert managers to the legal issues they may face in dealing with their employees' social media posts, particularly when the post involves provocative or insulting material related to the job, the managers or their employer. The following rules are designed to provide managers with some practical guidance about how to analyze their employees' social media posts and communications and how to avoid the legal pitfalls associated with them.

Space prevents us from including all ten rules, so we'll begin with four of the most important ones and conclude the article in our next issue.

RULE #1: Do Not Friend Your Subordinates

There are a number of reasons for this. First, it looks bad. If you "friend" some of your subordinates, but not others, it creates the appearance of favoritism. Second, it is never a good idea for supervisors to become too close to the people that they manage on a day-to-day basis. Third, if you visit a "friend's" page, you may find out things about the friend that you do not want or need to know: he just tested positive for HIV-AIDS, or she posted a picture of herself "smoking the ganja" while on vacation in Jamaica. If the employee with HIV was about to be fired for poor performance, your new knowledge may mean that you have to change your plans. And will you drug test the returning vacationer?

Remember, too, that "friending" is a two-way street. If you post "interesting" things about your personal life, you can assume that they will be common knowledge throughout the dealership even among non-friends. That can easily undermine your role as a manager and perhaps make it more difficult to enforce the company's rules and otherwise manage your employees.

RULE #2: Don't Post Anything You Would Not Say To Your Boss (Or Your Significant Other)

Although you may think that your emails, posts and tweets will only be seen by your close friends, think again. They can easily be forwarded to others in an increasing larger circle. In addition, any recipient can print something out or forward it so someone you would not have sent it to in an effort to embarrass you. A sitting federal judge in Montana recently learned this when he forwarded a racist email about President Obama to six "friends" and it somehow found its way onto the internet.

Remember, too, that social media is archived, much like email. As a result, things that you post today may still be accessible years from now, long after you removed the post. If you are sued by a subordinate for discrimination, everything you have posted on Facebook, said in your tweets, or forwarded on your computer is fair game to the other side. A racist or sexist comment or joke posted or forwarded after a night of drinking can still come back to haunt you and provide the jury with telling insight into your character as a manager.

RULE #3: Be Careful About Checking Out An Applicant Online

Many articles have been written about the practice of checking an applicant out online to find out what kind of a person he or she really is. There are even companies that will do this for you. This would include accessing their Facebook page and other sources, as well as "Googling" their name. Be careful. Companies that do this have been warned by the FTC that such activity may be unlawful because they failed to comply with the Fair Credit Reporting Act.

In addition, what will you do if you discover that the applicant is suing a past employer for sexual harassment? What will you do if you discover other information which causes you to decide against hiring the individual? If you refuse to hire someone, you may have to explain the reason for your decision in court. So do not base your decision on information that might be viewed as unlawful retaliation or which might suggest some form of bias – sex, race, age, disability, religion, etc. Remember too, you can't believe everything you read on the Internet.

RULE #4: Understand "Protected Concerted Activity"

We have all read or heard of cases where an employee posts something critical of his or her manager on Facebook and is terminated. It has been so common that there is even a name for it: "Facebook firing." But it's a lot more complicated than that.

The National Labor Relations Act (NLRA) was originally passed in the 1930s to protect employees who were seeking to start or join a union. But the law is much broader. It also protects nonunion employees who simply discuss or complain about their "wages, hours or working conditions" with their fellow coworkers. So the law protects any non-managerial employee – whether involved with a union or not – who engages in "protected, concerted activity."

The "activity" is discussing or complaining about any aspect of their employment, including their supervisor or the owner of the company. It is "concerted" if two or more employees are involved or if only one employee is making the complaint, but is making it on behalf of coworkers or is seeking to rally them to the cause. Finally, it is "protected" as long as it is done in a reasonable manner. For example, employees are protected if two or more demand a meeting with their manager or the dealer to discuss their entitlement to higher wages, the way the Saturday schedule is being set, or the heat in the shop.

Concerted activity loses its protection only when the employee or employees cross the line and the conduct becomes, as the NLRB puts it, "so opprobrious as to forfeit protection under the Act." Exactly when and how it becomes "so opprobrious" that it crosses the line depends on a detailed analysis of a number of factors and will ultimately be made by the NLRB. Unfortunately, the current NLRB is extremely "pro-employee" and has signaled that it intends to allow employees to engage in a range of conduct that previously would not be permitted.

We saw a recent NLRB case involving a dealership where a nonunion salesperson posted on his Facebook page offensive comments about the food that the dealership had provided at a customer event. The NLRB found that the employee was engaged in "protected concerted activity" because the posted remarks, while sarcastic and offensive, were related to his concern that the quality of the food served by the dealership might affect the "brand image" and might ultimately affect his commissions.

In another dealership case, a sales employee met with the owner to discuss his complaint about the sales pay plan and their working conditions. The meeting went downhill, with the salesperson calling the owner a "f---ing mother f----ing", a "f---ing a--hole" and a "crook" and threatening to make the dealer pay. The NLRB found that even that language did not cross the line.

If this hasn't happened already, it will: You will see or learn about an employee's Facebook posting which criticizes or embarrasses you as a manager or which is highly critical of the dealership or which criticizes a business decision. What should you do about it? Well, it depends. The first step is to determine if it is a personal gripe or if it is "concerted activity." Purely personal gripes are not protected by the NLRA. However, if a coworker or two respond to the post in agreement, it has become "concerted activity." Suffice it to say, this is one of the more complicated areas of the law. Therefore, we recommend that you contact a labor and employment attorney who has studied the NLRB's recent cases and let the attorney help you make that determination.

We'll pick up with Rules Five through Ten in our next issue.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.