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Employee Social Media Use During the COVID-19 Crisis: Consequences of Poor Judgment

Posted by Giovanna A. D'Orazio | May 11, 2020

We periodically write about the potential employment consequences of social media use.  “Misuse” is often a better word.   Pent up frustration during the COVID-19 crisis gives us cause to revisit this topic.

The ABA Journal reported yesterday that a law firm fired an administrative employee after learning of a social media post in which the employee criticized face mask requirements, and intimated that he would be opposing any face mask requirements with his gun. 

This employee worked for a private business, and his post had nothing to do with his employment conditions.  Therefore, an employer is within its rights to terminate someone who they disagree with, who they believe is threatening, or simply because they believe he showed poor judgment in making such a post in the first place.  Private businesses have a lot of discretion to terminate employees for any – or no – reason, so long as it is not illegal discrimination or retaliation.  (When can it be discrimination? When employers don't apply their policies evenly – for example, treating men better than women, or Caucasian employees better than black employees).

In a similar vein, the New York Times recently ran an article on social distancing vigilantes and employees being fired for participating in re-opening protests.  Participating in such a protest, particularly in the armed protests we are seeing in southern and midwestern states, is unlikely to be protected from employment consequences. Additionally, disturbingly, many of these protests have included hate speech, Confederate flags and swastikas.  This type of speech is not typically protected in the workplace.  We wrote about that here after the Charlottesville rally. 

We are also hearing about employees complaining publicly about their unsafe working conditions.  This is when the employment issues can become more complicated.  For private employees, there is no “First Amendment” protection.  But, the National Labor Relations Act does protect concerted activity.  So, if you are banding together with other employees to improve your workplace conditions – and not just airing a personal grievance – this is a situation where you may have recourse if your employer retaliates against you.  The National Labor Relations Board (NLRB) has information on your social media rights here

If you are a public employee, you do enjoy some, albeit limited, First Amendment protection.  Public employees enjoy free speech protection when they speak publicly on matters of public concern.  Again, this is not a personal grievance.  This is raising an issue that concerns the public at large.

We often tell employees who are still working that they are the ones who want to come out smelling like a rose.  So, if you have a legitimate workplace grievance, you should seriously consider taking advantage of internal complaint procedures and/or making a complaint to a relevant agency before you take your grievance online.  If your employer is breaking the law, such as not following NYS workplace safety mandates or OSHA guidelines, then whistleblower laws want you to make a complaint in order to be protected from retaliation.  Unlike the NLRA, that complaint typically needs to be internal to someone who would have the authority to correct the situation (like HR or a superior) and/or to the appropriate agency.

If, ultimately, you do decide to take your grievance to social media, keep it professional.  While the courts have held that profanity laden comments can be protected by, for example, the NLRA, why put yourself in the position of having to defend your language and professionalism. 

If you believe you have been retaliated against for engaging in protected activity, give us a call.  We are happy to see if we can help.

About the Author

Giovanna A. D'Orazio

Giovanna has experience litigating, among other things, commercial, general civil, employment, land use and personal injury matters in New York State and federal courts. Giovanna focuses her practice on plaintiff's employment and personal injury matters, with a particular interest in women's rights and employment discrimination and harassment.

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