Perils and Pitfalls: Social Media Law and the Workplace

October 21, 2014

Social media has radically transformed the way companies do business—so much so that what was once referred to as “using social media for business purposes” is now, simply, “social business.” Among there designed business processes encompassed by this newly-coined concept are those involving company brand promotion, marketing of products and services, and communicating with customers, consumers, suppliers, and shareholders, among others.

Recent studies indicate that:

  • 75% of business customers rely on social media to make purchasing decisions
  • 81% of individual consumers are influenced by friends’ posts on social media when choosing a product to buy
  • 47% of U.S. consumers report that Facebook is their number one buying influence
  • 70% or more of marketing professionals have used Facebook to gain new customers


Unfortunately, the current legal landscape in the U.S. does nothing to help mitigate the high legal risks social media brings to employers. Gaping holes exist in the standards governing employers’ rights and responsibilities with respect to employee social media use.

As explained in Perils and Pitfalls, Social Media Law and the Workplace, the increase in workplace social media use presents U.S. employers with considerable risks, both legal and commercial.

The meteoric rise in workplace social media use has far outpaced the ability of federal legislators to produce laws to govern it. The result is a precarious absence of consistent legal standards to guide U.S. businesses.

The inconsistency among state laws governing employers’ ability to access employees’ social media accounts, the NLRB’s ad-hoc, pro-employee rulemaking and decisions, and the importance of social media content to employers in litigation combine to make workplace social media use a high risk area for U.S. businesses and warrant the attention of federal lawmakers.

It has become imperative that federal and state laws develop a better and more consistent balance between employees’ interest in online privacy and employers’ interest in enforcing important workplace policies and fully investigating reported violations. Unfortunately, many of these governing bodies and their regulatory agencies are pursuing pro-union agendas without regard to the business and economic realities involved in employer-employee relations.

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