Social media and small business: A legal guide

  • Article by: STEVE ALEXANDER , Star Tribune
  • Updated: August 11, 2013 - 11:23 AM

A free, state-sponsored booklet written by a Minneapolis attorney clarifies social media rules.


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Anyone who uses social media has heard stories of the pitfalls — you could be stalked, potential employers could snoop into your past, oversharing could lead to identity theft. But the state of Minnesota believes there’s still one group that needs to be warned: small businesses.

In “A Legal Guide to the Use of Social Media in the Workplace,” published by the Minnesota Department of Employment and Economic Development, Minneapolis attorney Michael Cohen argues that a company’s reputation, trade secrets and legal liability hinge on understanding the rapidly changing rules of using social media.

A free copy of the guide can be read on the website of Cohen’s law firm, Gray Plant Mooty, at Or it can be ordered in print or on CD at the department’s website, Cohen explains why you should read it:


Q Why write a legal booklet about social media now?

A Every day I read about another legal case that deals with social media and privacy issues. The problem is that there is no one law that applies to social media. It’s a combination of federal and state laws, plus the “terms of use” that are posted on websites and social media platforms. So I think people are looking for guidance.


Q What advice do you have for companies that want to use social media to screen job applicants?

A You have to be careful how you use it. You can’t ask a job applicant about his or her family situation, place of residence, religion or sexual orientation. So if you come across that information on social media and rely on it for hiring, it’s problematic. Don’t have your human resources person do the social media review; have someone else do the review and only pull out the information that is acceptable.

Q Do employees have the right to talk about their employer using social media?

A The National Labor Relations Board has said that company social media policies go too far when they say employees cannot post materials online that disparage the business. Employees have the right to discuss workplace conditions, and you can’t fire people for doing that online.


Q But what if employees use company-branded social media, such as Twitter posts, to say things that are unacceptable?

A Companies need to understand what their employees are doing with social media for the business. A lot of companies use social media for marketing, and if that’s the case the company needs to have a policy about how it’s going to be used. If employees are using company social media to say disparaging things, the company may be liable for it under the principle of “vicarious liability.” If, on the other hand, employees use social media outside of work, that might not be a concern.


Q Are there any precautions a company should take when it comes to social media?

A There is one very inexpensive step that businesses can take if they have a dynamic and interactive website. Under the federal Digital Millennium Copyright Act, a business can put a “notice and takedown provision” on its website.

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