Employees and employers alike need to understand and follow clear and written rules about what they can and cannot do on social media when it relates to the workplace.

By Traci Martinez

Of the 7.4 billion people on earth, 3.8 billion have mobile phones, 3.4 billion are active users of the internet, and 2.2 billion have social media accounts. Clearly, mobile devices make it easy for people to email a friend, post a photo on Facebook or read a Twitter feed. They also make it easy for people to engage in social media activities when they're supposed to be working.

While social media can consume work time, it's often difficult to determine who is using it while being paid to do something else. Add to that the ability for any unhappy employee-whether on or off the clock-to grouse about coworkers or bosses to thousands of people instantaneously and you've got a challenge. Needless to say, all of this can cause headaches for employers, who must balance employees' free speech rights with the need to manage their organization's productivity, risk and reputation.

Companies have a lot of questions and concerns as they struggle to deal with the confusing legal and regulatory landscapes that govern social media. Five years ago, I didn't get a single question about social media issues in the workplace. Today, I regularly field calls from clients who need advice and counsel about situations involving social media. Based on these conversations, here are tips to help CEOs and other executives navigate this ever-changing environment:

Develop a Social Media Policy
The best place to start is with a solid social media policy. Be sure to work with legal counsel to write a policy that is industry specific, and regularly communicate the policy to employees.

Understand What Constitutes Protected "Concerted Activity"
The National Labor Relations Act safeguards union and nonunion workers' rights to act together to improve their pay or work conditions or to fix job-related problems.

"Concerted activities" now include those that occur online, such as Facebook posts and Twitter tweets.

CEOs generally don't realize that the National Labor Relations Board has taken a broad approach on this subject. The board repeatedly has ruled in favor of employees who have posted items relating to pay and working conditions. So make sure your policy doesn't prohibit "concerted activity."

Be consistent with Responses to Egregious Behavior
Social media is the same as water cooler talk. So take the same discipline approach with something said or done on social media as you would with something said or done around the water cooler.

Exercise Common Sense
While issues involving social media are complex and confusing, it's OK to use a little common sense when dealing with them. If you think there's a problem, go with your gut and investigate. Although a lot of social media activity is protected, much of it isn't. Even actions taken outside of work can be actionable depending on your company's workplace and social media policies. But don't make the decision alone. Talk to your lawyers and get some legal counsel. If something violates your company policy or social media policy, it should be disciplined.

The moral of the story? Employees and employers alike need to understand and follow clear and written rules about what they can and cannot do on social media when it relates to the workplace.

Traci Martinez, a partner at Squire Patton Boggs, combines her training and experience as a lawyer and her background working as a teacher and technology specialist to advise public and private sector clients on the practical application of general employment laws.