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Social Media During Tense Times: When in Doubt, Silence Is (Often) Golden

Posted by Giovanna A. D'Orazio | Oct 17, 2023

We periodically write about the potential employment consequences of social media use.   Right now, we are seeing controversy with respect to posts about current events in the Middle East.  Israel was recently attacked by Hamas terrorists, and there is now war in the region with many innocent people caught in the crossfire.  While there are unquestionable atrocities that have occurred, the history of the region is complex and some may feel compelled to comment upon that as well.  That is where social media can be like navigating a minefield.

We last visited this subject in more depth during the pandemic and the Black Lives Matter protests that erupted that summer.  At the time, we proposed 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.  Simple as that.  We would go so far as to say that, if you have even paused over the appropriateness of your post, that's enough to err on the side of remaining silent. 

Are there times where your silence may be noticed or taken negatively? Yes.  But in that situation we'd suggest reaching out to friends or loved ones privately rather than risk making a public comment on something you're not quite sure how to best articulate.  If you are compelled to speak out publicly - and we know that populations under attack often call for public support - less is more.  It may seem like a platitude, but a general call for peace or empathy for innocent victims - or simply acknowledging that you are at a loss for words - may be more prudent than wading into a conversation you're either not fully educated on or making a comment that is ill timed or insensitive to individuals more personally impacted than you are. 

So what happens if you do post something that ends up being offensive or controversial or tone deaf or a million other things?  A quick Google search will bring up numerous articles about employees being fired or publicly shamed and called out for comments on both sides of this conflict. 

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, in 2023, most employers have social media policies prohibiting offensive or 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. 

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 talk about this in greater detail in a previous article, so please check that out for more.  In a nutshell, 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.  An exception can exist in the education context, where even private schools, especially if they receive federal funding, adhere to free speech protections. 

If you are a New York employee and believe you were fired for exercising your First Amendment rights or because of the discriminatory application of a social media policy, feel free to give us a call or complete an intake form on our website.  We're 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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