We periodically write about the potential employment consequences of social media use – often “misuse” is a better word. We just had a contentious presidential election and if you’ve dared look at social media this week, things are tense! And when emotions are high, people can be thoughtless and cross the line. Sometimes your words can cause harm to others, and sometimes you harm yourself because freedom of speech is not freedom from consequences.
Social Media Posts on Non-Workplace Issues are Usually Not Protected.
Generally speaking, your social media posts are not protected from retaliation in the workplace. Most employees are “at will” and, today, most employers have social media policies prohibiting offensive and harassing social media use that may reflect poorly on the business, and that warn of immediate termination as a consequence.
Employees should assume their social media posts will make their way to their employer and should be conscious of how a post may reflect on their employer. Employers often take public positions in difficult times or in response to a tragedy, so you should also be conscious of whether your post goes against that position and weigh whether it’s worth being publicly contrary. A rule of thumb: if your post can be interpreted as threatening or discriminatory, whether you agree with that assessment or not, don’t post it.
What if you think your post is just political discourse? That’s unlikely to be protected either. The NY Labor Law protects some “political activities” but they are narrowly defined as “(i) running for public office, (ii) campaigning for a candidate for public office, or (iii) participating in fund-raising activities for the benefit of a candidate, political party or political advocacy group.” NY Labor Law 201-d. Notably, what is not included: your generalized political beliefs.
On the employer’s side, the important thing is to apply your policies evenly and fairly among your employees. When policies are applied unevenly as between protected groups (i.e., based on race or sex), that is when you can see claims of discrimination.
When Can Social Media Posts Be Protected?
We’ll keep this brief because it’s less likely to come up in the post-election discourse context.
Complaints about workplace conditions, that are made on behalf of the group (as opposed to a personal grievance), can be protected under the National Labor Relations Act. Public employees also have some First Amendment protection for speaking publicly (as a private citizen, and not on behalf of their employer) about matters of public concern (again, not personal grievances). That doesn’t mean you can never get fired for speaking on a matter of public concern – the employer has some rights here when the speech negatively impacts its operations – but there’s bit more protection than for private employees who don’t typically have any speech protections unrelated to workplace issues.
If you believe you have been retaliated against (i.e., lost your job) for engaging in protected activity, or had a social media policy applied to you in a discriminatory manner, feel free to complete an intake form on our website. We are happy to see if we can help.