All information on this website is for informational purposes only and is not legal advice. Ninomiya Law, PLLC and Kent Ninomiya only provide legal advice to clients when there is a valid engagement agreement signed by both attorney and clients. The principal office of Ninomiya Law, PLLC is located in Round Rock, Texas. Ninomiya Law, PLLC is responsible for the content of this website.

social media employment laws

keeping you and your family safe

Social media has simultaneously made employment more efficient and more complicated. It is easy to do a quick social media search to see what an employee or prospective employee is putting on the Internet, but actions taken by employers as a result of that social media information can result in legal action against the employer. It all depends on context, subject matter, and the business' existing social media policy. ​For help figuring out what to do about these social media laws, see the Your Options page of this website.

National Labor Relations Act: (NLRB): Section 7 protects employee social media activity relating to terms and conditions of employment when undertaken in a “concerted fashion.” This includes offensive and insulting discussions on social media about the workplace conditions and other employees. Any attempt to stifle these rights in a social media policy violates the NLRB and could result in a lawsuit and sanctions.

Fair Labor Standards Act: 29 U.S. Code Chapter 8, § 207: Can apply to social media managers working long and odd hours managing brands.

​U.S. Equal Employment Opportunity Commission (EEOC) enforces federal employment discrimination laws and provides oversight and coordination of all federal equal employment opportunity regulations, practices, and policies. Social media posts can provide evidence of discrimination and unlawful intent. Employers can be held liable for social media discrimination even if it comes from coworkers and not management. Laws include:

  • Title VII of the Civil Rights Act of 1964 (Title VII): Prohibits employment discrimination based on race, color, religion, sex, or national origin.
  • Equal Pay Act of 1963 (EPA): Protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination.
  • Age Discrimination in Employment Act of 1967 (ADEA): Protects individuals who are 40 years of age or older.
  • Title I and Title V of the Americans with Disabilities Act of 1990, as amended (ADA): Prohibits employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments.
  • Sections 501 and 505 of the Rehabilitation Act of 1973: Prohibits discrimination against qualified individuals with disabilities who work in the federal government.
  • Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA): Prohibits employment discrimination based on genetic information about an applicant, employee, or former employee.
  • Civil Rights Act of 1991: Provides monetary damages in cases of intentional employment discrimination.

Fair Credit Reporting Act (FCRA): Applies to outside agencies performing social media background checks on current or prospective employees. There are strict regulations applying to both the agency and the business employing them to be transparent regarding social media searches, to reveal what information was used against the subject, and allow the subject to see what is in their file. If employers learn information that could be used to discriminate (such as race, religion or sexual orientation), they could be subject to a lawsuit claiming employment decisions were made on a prohibited basis. ​ 

​State Laws Protecting Social Media Passwords:

  • According to the National Conference of State Legislatures, at last count, 23 states passed laws protecting employee social media usernames and passwords from employers. Each state law is different, but most protect both current and prospective employees from demands or even requests for the information. Many other states are considering legislation. 
  • 14 states also have social media password protection laws applying specifically to educational institutions.

Occupations Code: Regulates various professionals and industries, such as acupuncturists, dentists, health spas and credit services.

Account Ownership & Trade secrets: There are no clear cut rules dictating ownership of social media accounts and followers when an employee or independent contractor performs social media networking on behalf or for the benefit of a business. Social media business contacts and control of professional discussion groups can be considered trade secrets. It all depends on the particular business relationship, whether there is a preexisting social media policy or agreement, and laws of the jurisdiction. 

For more options, see the Your Options page of this website.