While expressing your thoughts on social media platforms under constitutional law is unquestionably legal, employee protections for such posts are less obvious under employment law. In general, an at-will employee may be terminated for any reason the employer deems appropriate, as long as the reason is not unlawful or discriminatory in character.
This includes dismissing a person who has complained negatively about their employer, a manager, or even a coworker in a blog post or online posting. In general, employment rules don’t stop a private business from terminating a worker because of a “rant,” offensive posts, etc. This is especially true if the post is made in a way that the public can see it.
What Sort of Posts Might Cause Problems at Work?
Nowadays, a lot of workplace conflicts center on people getting fired for what they post on Facebook, X (formerly Twitter), and other social media platforms. Even though every employer may have a distinct social media policy, there are some posts that will unavoidably have a negative impact on employment:
- Posting violations of safety and health (for instance, a fast food employee posting a picture of themselves tampering with food at work)
- Publicizing criminal or illicit behavior
- Divulging trade secrets of a corporation
- Personal complaints about a job
Therefore, while publishing content on social media, employees should always use caution and good judgment, especially if there is a potential that an employer or coworker will see the post.
What Kinds of Posts Are Legally Protected?
Employees who engage in “concerted activity” are protected by labor union laws. As an illustration, this could entail advocating on behalf of other coworkers to seek better working conditions, hours, etc.
Employees are often protected from discipline when they take part in concerted activity. These cases can involve legal terms that are hard to sort out on your own.
Can I Lose My Job Because of My Social Media or Blogging Activities?
The First Amendment protects press freedom and free speech for people in the United States. This does not imply that all of our speech is protected when we are at work, though. The First Amendment’s safeguards prevent the government from restricting the right to free speech.
Private employers are free to establish their own policies on the use of social media and blogging by their staff members.
For instance, certain things an employee may publish on a social media site or a blog could offer their employer justification to fire the employee. This depends on the type of job and the terms of the work contract. However, it is probably reasonable to state that it is best practice to refrain from posting disparaging remarks about a person’s employment online.
Can I Be Fired Because of My Social Media Posts?
The majority of workers are at-will ones. In other words, an employer is free to fire a worker at any time. An employee may also terminate the employment relationship at any time and for any cause. There are, of course, exceptions. A worker cannot be fired for a reason the law protects. Reporting illegal activity at work is one example. Firing someone because of race, sex, religion, or another protected trait is also against the law.
Almost all employers provide an employee handbook to new hires at the start of their job. It needs to be read over and signed by a new employee. A particular rule or policy addressing certain social media postings may be included in this handbook, along with a warning that violating such a rule or policy may result in the employee’s termination.
Online communications that might be viewed negatively and result in dismissal include some of the following:
- Posting unfavorable remarks about the business or coworkers might be grounds for termination;
- Disclosing trade secrets or other sensitive information would be grounds for termination;
- Breaking a rule prohibiting the use of social media or blogging platforms while on the job might be grounds for termination; and
- Making inappropriate or unprofessional comments or posting in a discriminatory way would be grounds for termination.
These kinds of conditions may also be expressly expressed in an employment contract that a person has with their employer. Therefore, a person’s employment could be terminated for breach of contract if they disobey any contract clauses pertaining to posting content online.
Remember that the preceding list is not all-inclusive as well. Each employer could have slightly different rules.
A person would take the effort to learn about their employer’s standards surrounding blogging and social media use if they took their job seriously and wanted to conduct themselves properly.
A person’s employer may also have a mechanism in place for dealing with discipline, which may say that a first offense could result in a warning or a write-up for the behavior rather than outright dismissal.
What Sorts of Social Media and Blogging Activities Are Safe?
People can still write or post on social media without worrying that they’ll lose their job on a few protected topics. A person may also have a case for wrongful termination if they were fired as a result of engaging in this behavior. The following subjects are typically covered in this:
- Political Beliefs: In some places, employees are protected from being fired from their jobs if they publish about their political beliefs and associations;
- Whistleblowing Concerns: Posting about a company’s illegal activity or any information indicating that they are assisting an inquiry into that company’s criminal action cannot result in a person being dismissed;
- Workplace Environment: This can be viewed as a protected activity if workers are sincerely debating harmful working circumstances or potential solutions to remedy unsafe conditions. A person cannot be fired by their employer because they voiced legitimate concerns. The objective of these discussions must be to alter these working conditions, nevertheless. Social media complaints about one’s employer would not fall under this exception;
- Posts Made on Personal Time: If an employee posts something on their personal page while not at work, certain states will likewise shield them. However, this exception might not apply if the posted material is illegal.
There are a few possible safeguards for workers who post on social media, such as state laws that defend workers from discrimination based on their extracurricular activities, political viewpoints, or religious convictions.
The federal National Labor Relations Board (NLRB) also protects some job-related posts. It has held that labor law stops employers from firing or punishing workers for certain work-related writings or blogs. Those protections are still in place today.
They do not cover every post. Protection usually applies when workers talk with coworkers about pay, hours, or working conditions. A post that is only a personal complaint is usually not protected. Neither is a post that makes threats or leaks company secrets. The details can shift over time as the NLRB decides new cases.
The interaction between workers, unions, and management is governed by federal labor legislation, which also protects workers who take part in “concerted activity” to raise their salary, enhance working conditions, or solve other workplace-related issues.
Employees are protected regardless of whether they belong to a union or not, just like union members are. Employees who take collective action on working concerns in a non-union company are shielded from employer punishment, such as termination. Meeting with a manager to lobby for improved benefits or holding a group discussion about the company’s safety record are two examples of activities that would be protected.
An activity is “concerted” when it deals with a problem shared by more than one worker. A single worker can also be covered when they speak up for coworkers or try to get a group to act. A worker who only complains about their own performance review is not taking part in a group effort.
However, it is considered concerted action when an employee, after conferring with coworkers, claims that some employees are unfairly penalized by the company’s performance review system. The distinction is between one worker griping about their particular circumstance and a group of workers cooperating to address a systemic problem.
Workers can lose protection if their conduct turns harmful or reckless, even when they are clearly acting as a group. Workers who share company secrets or make threats, for example, would not have a strong claim against being fired.
Should I Speak with an Attorney?
When it comes to social media use, employment law is better settled than it once was. This field is no longer new. Guidance from federal agencies and court rulings since the early 2010s have shaped it. The rules still change as new cases are decided. You might want to engage a contract lawyer if you have any queries, grievances, or legal worries regarding social media and your workplace.
Your lawyer can inform you of the most recent legal developments and can also outline your legal rights under state and federal statutes. Your attorney can also represent you in court if you need to make a claim or file a lawsuit.
