The Right to Post: Social Media Guidelines for Employees and Job Seekers
I’m always amazed at what people are willing to post on social media. From political rants and crude memes to embarrassing karaoke videos taken after one too many margaritas, you can find it all on a person’s Facebook, Instagram, or TikTok account. Sometimes my team sees these posts from candidates we’re considering for a job, and these posts give us reason to reconsider.
But do we have a right to do so?
Here, we’ll cover what your rights are as an employee or job seeker when it comes to social media. We’ll discuss some basic social media rules to follow so you don’t make a mistake with that Instagram reel or LinkedIn post that could cost you your employment.
What Are the Rights of Employers With Social Media?
When you’re feeling frustrated, stressed, or just need to vent, it can be tempting to turn to social media as an outlet. In your personal life, what you choose to post is entirely your decision. When it comes to your professional life, though, the standards for what’s acceptable to share on social media can be very different.
Unfortunately, the answer to the question of how much control employers have over workers’ social media isn’t so cut and dry. You’ve probably heard horror stories about employees who have been fired for making negative comments about their employer on social media and, in turn, have sued their employer.
In many cases, the rights of an employer to create social media rules for employees will depend on the state and the particular circumstances, however, there are some national-level guidelines and existing case law we can turn to draw conclusions about an employer’s legal reach in this area.
Employers can enact a social media policy
For starters, an employer can dictate whether you use social media while on the job. It’s within a company’s rights to prohibit social media use on work computers and company-issued mobile devices, and doing so against your employer’s policy can result in discipline or termination.
When it comes to your personal devices, things get a little murkier. A lot depends on the terms of employment that are outlined when you take the job.
For example, in a Georgia case, a court ruled that an employer was within its rights to access any information “left on or transmitted over” their networks because this expectation was explicitly outlined in its employee manual. So, if your company has a similar policy, they could legally access your Facebook messages or other communications you sent while logged onto their WiFi network.
Like many cases in this arena, this one hinged on the employer outlining their expectations ahead of time in a social media policy. A company can—and should—have a social media policy, but there are some things that it can’t legally dictate. We’ll cover that next.
Employers can’t prevent ‘concerted activity’
The idea of ‘protected concerted activity’ is at the core of what’s legal and what’s not when employers set social media rules for employees.
The National Labor Relations Act protects the right of workers to engage in concerted activity to improve workplace conditions, like comparing notes on wages, discussing work hours, etc. This act was established in 1935 to encourage collective bargaining, but it has since been applied to include everything from Facebook and X posts to group texts and more.
If you post about how you hate your company, you might run into a problem. On the other hand, if you share specifics about how much money you make and a coworker comments, weighing in with how much they make and discussing how you might negotiate for more money, this post would be considered protected concerted activity that your employer cannot use as a reason for termination.
Similarly, if you’ve had a rough day and you post about how frustrating it is to work long hours standing on your feet all day, this would be protected as it discusses working conditions that, arguably, could be proven to be true. However, if you post a statement that you know to be false, like an accusation that your company uses overseas child labor, it would be grounds for termination.
It’s important to note the distinction between venting about your work conditions (protected) and aimlessly disparaging your company, boss, or coworkers (not protected). So, your posts about your boss forcing you to work double overtime are protected, but your Instagram story making fun of his speech impediment or saying that she smells funny is not.
In some states, employers can’t force you to show them private accounts
Employers, like anyone else who uses the Internet, have free reign to browse profiles that are publicly accessible. However, many states have made laws that prevent companies from accessing employee or applicant profiles that are set to private.
California, Delaware, Illinois, Louisiana, Maryland, Michigan, Montana, New Hampshire, New Jersey, New York, and Vermont have enacted laws that protect individuals from employer inquiries into their private social media activities.
So, if your Instagram account is public, my team would be within its rights to take a look and see what you’ve posted if we were considering you for an opening. If that profile were set to private, however, we could not force you to hand over your credentials or log in with us watching in order to see your posts.
These laws do not prevent your employer from asking for access to your accounts to investigate alleged misconduct or illegal activity.
What You Can’t Post
Now that we have a foundation for what kind of work-related speech is protected on social media let’s cover some types of activity that are not protected. Whether or not these posts have anything to do with your job, if you engage in these types of social media activities, your employer is likely within their rights to discipline or terminate you.
- Posting about or sharing photos of yourself participating in illegal activities
- Making posts in an attempt to coordinate illegal activity
- Posting discriminatory, racist, or homophobic remarks
- Engaging in sexual harassment
- Making violent threats
- Spewing hate speech
- Encouraging insubordination among colleagues
- Disclosure of proprietary, financial, marketing, or other confidential business information that’s not tied to the terms of your employment
- Posting confidential information about clients
- Revealing trade secrets
- ‘Liking’ posts that involve any of the above (although this is more of a gray area)
When in doubt, refer to your employee handbook and the social media policy. In the unfortunate event that something you post on social media lands you in hot water with your company, this document will carry a lot of weight in determining whether they have the grounds for termination. It’s easier said than done, but if you’re unsure of something you’re about to post, your best bet is to hold off if you want to protect your job.
What About Social Media for Job Seekers?
If you’re job searching, you have a whole different can of worms to deal with regarding social media.
When you’re already employed, your company’s biggest concern will be with things you’re posting now. If you’re hoping to get a job offer, though, there’s no telling what kind of content a prospective employer might dig up from your social media past.
Many candidates want to know if it is legal for a company to use social media in the hiring process. The short answer is yes, it’s perfectly legal. And in fact, most employers do it. As long as a company doesn’t use those social media findings to discriminate based on race, gender, or religion, there are no laws prohibiting employers from eliminating a candidate from the running due to something they saw in a Facebook post or on an Instagram feed.
As a job seeker, follow these seven tips to keep your social profiles employer-friendly.
1. Put your best face forward
If an employer types your name into the LinkedIn search bar, make sure the first thing they see isn’t that picture from your bachelor party where you’re three sheets to the wind or a picture of your cat. Instead, put your best face forward using a clear, quality headshot as your profile picture. Family photos and other G-rated pics are fine, too.
2. Clean up old photos
Facebook, in particular, is notorious for housing a treasure trove of old photos, many of which you probably wouldn’t want your mom to see, let alone a hiring manager. Before you hit ‘send’ on that application, spend an hour or two going back through the archives and untagging any unsavory shots.
Related: How to Clean Up Your Social Media
3. Review what you’ve posted
A sarcastic post you made in jest may have been funny five years ago, but it might not hit so well now that you’re applying for leadership roles or working to break into a niche field. Go back through your post history–yes, this will take a while–and delete anything you wouldn’t be proud of for an employer to see today.
4. Step up your privacy settings
If you’re someone who likes to use social media to get into heated moral debates or re-pin politically incorrect memes, you might want to consider tightening up the settings on what strangers can see.
It’s worth noting that posting this type of content on a private account is still a risk. After all, you never know when a recruiter or hiring manager might be a friend of a friend who’s able to see what you post even though your profile is restricted.
5. Don’t completely lock down your social media presence
57% of employers are less likely to contact applicants who lack any online presence whatsoever. When someone Googles you, you want them to be able to find some information that demonstrates you’re a living, breathing human, and preferably positive information.
To help facilitate this, consider keeping at least one public-facing profile that you maintain with hiring managers in mind, such as LinkedIn. Share job-related news, industry updates, your take on market trends, and other content that will establish you as knowledgeable in your field. A bonus is that you can use it to network with others in your field and potentially even learn about additional job opportunities.
6. Leverage your profiles to your advantage
I can’t tell you how great it is when candidates make it easy to learn more about their professional aptitude, like designers who have a link to their portfolio in their Instagram bio. Your social media profiles can be a useful tool in providing would-be employers with additional information that will help them form a positive impression and decide to give you a closer look.
7. Make beneficial connections
Getting a job often depends on who you know. The beauty of social media is that it allows you to expand your network to include people you’ve never met in real life. Use LinkedIn to make strategic connections with recruiters in the fields and companies you’re interested in. We have a full guide for how to connect with recruiters on LinkedIn here.
