Law is often slow to change, and it can be tough for the law to keep pace with technology. Social media has changed how the world communicates, and the rules for acceptable uses of social media are still being written. It’s not uncommon now to have heard or read of a person who lost his or her job because of something written or posted on social media.
Many employees believe that under the First Amendment, which guarantees free speech, they have the right to say anything they want when not on the job without facing any consequences for their actions. However, it’s extremely easy for employers to find employees online, and when they do they may not be happy about what they find. Legally, in some cases they can take actions against their employees for social media posts, and in other situations they cannot. The First Amendment only provides protections for American citizens from the government, not from private companies.
Complaints about pay, working conditions, or other job-related issues. In recent years, some employee protections have been put into place by the National Labor Relations Board, which has determined that certain labor laws prohibit employers from firing or disciplining employees for some job-related posts. For many employers, the biggest gripe they may have about social media use is when social media is used by employees to complain about employers. Employees, whether or not they are in a union, who work together to improve working conditions are protected from employer retaliation. However, to be protected, the speech normally has to involve multiple employees to seek their input or to provide support. The airing of personal complaints online without seeking input from other employees is not protected.
For example, an employee who posts something disparaging on social media, and asks other employee to chime in, may not be fired for their online post, because they are discussing working conditions and may be planning to try to make improvements. However, an employee who posts online how much she hates her boss and her job could be fired for those statements, because he or she is not seeking any input, but only complaining.
Posting confidential or protected information. The internet and social media definitely pose a threat to confidential company information. It’s easy today for disgruntled employees to post confidential company information online. All employers should have social media policies that clearly define what information cannot be posted online, and employees should understand the policies. Employees also must understand why it is so important to protect certain information. Whether or not an employee can be fired for posting confidential information depends on what was posted, the social media policy of the company, and other facts involved, but in most situations an employee who posts confidential information online could be fired.
Political messages. In most states, employees who work for a private employer can be fired for their political beliefs. Political beliefs or affiliations are not protected under the law. However, in California, discrimination by an employer on the basis of an employee’s political activity or beliefs inside or outside of work is not illegal, unless the activity interferes with the function of the business.
Off-duty conduct. You have probably heard of employees who have been fired because of their off-duty conduct which was shared on social media. For example, there have been many teachers fired after pictures of drinking, partying, or dancing at strip clubs emerged online. If the conduct was illegal, the employer absolutely has the right to terminate the employee. If the conduct was not illegal, but was objectionable to the employer, typically the employer can fire the employee, unless the termination was based on race, color, religion, national origin, sex, sexual orientation, pregnancy, etc. For example, if an employer was offended that an employee attended a gay pride rally, that is most likely a protected activity and an employer could not terminate the employee. If, on the other hand, an employee was terminated because he or she was working at a strip club, that is probably not a protected activity.
If you have any questions about social media usage and employee rights in San Francisco, call Micha Star Liberty, San Francisco employment attorney, at 510-645-1000. She can help. Call today to learn more or to schedule a free consultation.