We periodically write about the potential employment consequences of social media use – often “misuse” is a better word. The COVID-19 crisis as well as demonstrations in support of Black Lives Matter have created some tense times on social media and, inevitably, we have started to get calls from employees losing their jobs over their social media posts.
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 2020, 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.
Today, there are two primary areas where we are seeing employment consequences of social media use: the coronavirus and reactions to the Black Lives Matter movement. A rule of thumb: if your post can be interpreted as threatening or racist, whether you agree with that assessment or not, don't post it.
Corona-Posts Getting People in Trouble
As we all know, face masks have become a source of controversy. (Read our article on face mask requirements in private businesses here). Recently, the ABA Journal reported that a law firm fired an administrative employee after learning of a social media post in which he claimed he would be opposing 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.
In a similar vein, the New York Times 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 were 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.
Reactions to the Black Lives Matter Movement Getting People in Trouble
Conversations about race are uncomfortable. And, when we wade into that conversation with criticism of an equal justice movement based on a long history of oppression that we haven't taken the time to learn about, there is likely to be trouble. We also know that not everyone puts a great deal of thought into their social media posts and firing off thoughtless commentary on race is not a great idea.
So, you can imagine that it didn't take very long for us to start getting calls from employees who have been fired for social media posts related to the Black Lives Matter movement (or the related demonstrations and protests), that were interpreted by their employers as being threatening or racist.
While every situation is unique, generally speaking, there is not going to be recourse for this type of termination. Employers are allowed to fire employees for taking positions they don't agree with, that are contrary to the company line on an issue, that may reflect poorly on the business or turn off its customers, or that simply reflect poor judgment on the part of the employee, regardless of whether the post is objectively threatening or racist.
(And if you behaved violently or broke the law during a protest, you can get fired for that too).
As always, employers need to apply their termination criteria evenly to avoid claims of discrimination.
When Can Social Media Posts Be Protected?
In the context of the coronavirus, we have seen employees complaining of unsafe working conditions – something that will likely only increase as businesses reopen. 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 one who wants to come out smelling like a rose. So, if you have a legitimate workplace grievance (whether it's about safety or discrimination or harassment), 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. This is how you will best position yourself to fall under the protections of the applicable anti-retaliation and whistleblower laws.
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.