Whether or not the oral arguments in front of the Supreme Court, employers should be aware of some social media trends stemming from the app that are here to stay. As social media becomes inextricably intertwined with employees’ lives, content from their daily routines is increasingly made public for millions of people to view and interact with. Because the workplace encompasses a large portion of daily life, discussions about working conditions, coworkers, and job duties are publicly featured in a manner that simply didn’t exist a decade ago. For example, the following social media video trends may feature discussions about employment or the workplace itself:

• “A Day in the Life” - In “day in the life” videos, social media users edit together short clips of certain portions of their day. These curated clips are accompanied by music or by a voice-over explaining the highlights and lowlights of the day. Some “day in the life” videos are occupation specific, such as “a day in the life of a teacher,” and feature various video snippets of the workplace.
• Dancing Trends - Popular, short dances spread across social media platforms for users to replicate and post. Sometimes entire workplace offices will participate in a dance trend as an advertising tool or a way to boost employee morale. Coworkers may also create these dance videos together in their free time.
• Get Ready With Me - In these videos, users get ready for work, a social event, or any other aspect of their day. While the user walks through their skincare, makeup, or hair routine, they may share an experience from work or rant about a boss or coworker.

These trends represent a limited sample illustrating the way that social media is now not only used to capture “perfect” and manufactured snapshots of life, but also contemporaneous videos and photos of mundane, everyday activities, which can include the workplace. As social media use continues to shift and become further integrated into daily routines, employers should consider both the benefits and risks that social media may pose to the workplace. In addition, employers should likely update their social media policies in accordance with the changing landscape. In doing so, employers should keep the following in mind:

• Protect client, patient, and other confidential information

As social media trends towards contemporaneous videos that film any and all aspects of a user’s day, confidential information may be inadvertently captured in the background of a video. For example, an attorney may create a “day in the life” video, film the view from his or her office, and accidentally capture a client file on the desk or a laptop screen in the clip. Similarly, a nurse at a hospital may participate in a dance trend during a break and inadvertently capture the OR scheduling board containing the surgeries for the day and patient names. Depending on the needs of your workplace, consider limiting the times and areas in which employees are permitted to film. For example, your social media policy may validly permit employees to only use social media during designated break times or limit employees’ social media use to a break room that lacks exposed confidential information.

• Consider current guidance from the National Labor Relations Board (NLRB)

Employees have the legal right to discuss their wages, hours, and terms and conditions of employment with other employees. Specifically, the National Labor Relations Act (NLRA), which applies to all non-supervisory employees, both unionized and non-unionized, guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The NLRB – the federal agency that enforces the NLRA – most recently held that employer rules are considered presumptively unlawful if they “could reasonably be” interpreted to prevent an employee from exercising his or her rights under Section 7. (Stericycle, Inc., 372 NLRB No. 113 (2023)) Employers may rebut this presumption by providing that the rule(s) advance a legitimate and substantial business interest, and that the employer cannot advance that interest with a more narrowly tailored rule. In addition, the board interprets whether the challenged rule has a tendency to chill employees from exercising their Section 7 rights from the perspective of an economically dependent employee (a layperson, not a lawyer).

Instead of broadly banning social media use at work or the discussion of the workplace on social media, which would likely be construed as limiting Section 7 activity in light of Stericycle, consider focusing the social media policy on protecting confidential information and/or respecting coworker privacy. Similarly, abstract requirements that employees “must communicate with each other in a respectful manner at all times” will likely fail. After all, complaining in a group on social media about a supervisor’s conduct, which is a form of protected activity, could reasonably be viewed as disrespectful. Such a policy would currently be interpreted as tending to chill employees’ exercise of their rights under the NLRA.

In order to “narrowly tailor” the social media policy, make sure to explicitly include the business reasons that support why keeping certain information confidential and out of the camera lens is important. Finally, ensure that the policy has a NLRA “savings clause” specifying that the social media guidelines are established to protect the company’s business interests and are not intended to impede employees’ rights under the NLRA.

• Reflect on the benefits of social media

Although it can be difficult to walk the fine line between adequately protecting your workplace and tailoring a social media policy to be sufficiently narrow, the cons of social media in the workplace are often outweighed by the pros. After all, a company dancing video may increase employee morale and engagement; a “day in the life” video featuring your company may encourage hundreds of applications or new customers to filter in. Companies can reach wider audiences, keep a pulse on client trends or preferences, and significantly increase the visibility of their brand. Carefully drafting social media policies allows you to harness the immense benefits of new social media trends and platforms, while minimizing the risks your company may face.