Facebook, Twitter, Instagram, Snapchat. Online platforms for communication that didn’t even exist a decade ago now occupy ever-increasing minutes of our lives. If you’re a working person who routinely uses social media, you’re right to wonder: Can my boss terminate me for social media posts I make on my own device, on my own time?
Generally speaking, save for narrow exceptions (discussed below), the answer is “yes.” If you work in the private sector, then you are an “at-will” employee. This means that, outside of a few protected categories, your employer can legally fire you for any reason, including for social media or other online posts that you allow your employer to access and view. For example, if you upload photos of yourself inebriated or otherwise compromised to an unrestricted Facebook account, your employer is free to express his or her disapproval by terminating you.
It only becomes potentially illegal for your employer to fire you for your social media posts when your posts involve a few things, which we’ll go over in detail.
Social Media Complaints of Workplace Harassment or Discrimination
Under both New York and New Jersey law, it is unlawful for employers to retaliate against employees for their complaints of harassment or discrimination based on a protected category like race, gender, age or religion. As such, it would likely be illegal for an employer to fire or otherwise retaliate against an employee for, say, a Facebook post criticizing the lack of females in upper management, or the company’s refusal to allow workers to reschedule shifts that conflict with religious observances.
Whistleblowing Complaints on Social Media
Under both New York and New Jersey law, it is unlawful for employers to retaliate against an employee for complaining about employer conduct that the employee reasonably believes is illegal, fraudulent, or in violation of a public policy. Given this, it would likely be illegal for an employer to fire or otherwise retaliate against an employee for, say, tweeting management a photo of exposed electrical wiring, faulty scaffolding, or other unsafe working conditions in violation of OSHA.
Social Media Discussions on Working Conditions or Union Activity
Under the National Labor Relations Act (the “NLRA”), employers are prohibited from firing or otherwise retaliating against employees for discussing certain “terms and conditions” of their employment, such as wages and hours. The NLRA likewise prohibits employers from firing or retaliating against employees for discussing union matters, including the possibility of organizing a union. As such, an employer would likely violate the NLRA by, say, firing an employee for maintaining a blog advocating for unionizing her fellow cleaning crew members.
I’ve described the foregoing exceptions at a very broad level. Please know that workplace anti-discrimination laws, whistleblower laws, and the NLRA have specific requirements to be met if social media communications are to be protected. For instance, the New Jersey whistleblower law only protects an employee from retaliation if he or she complains to a manager, supervisor, or relevant governing authority. A tweet or a Facebook post directed generally to one’s online friends and contacts may not satisfy this legal threshold.
Protecting Your Tweets and Other Social Media Posts from Retaliation
Because so few social media communications are protected from retaliation, I advise the following.
Avoid Posting Complaints about Work Online
If work colleagues are in your online social network, avoid posting complaints about work. There are several good reasons for this.
First, even if you post legally protected complaints (such as complaints of discrimination or harassment), there is no stopping your employer from unlawfully terminating you for them anyway. Your posts may give you a basis for a lawsuit, but that may be small comfort if you are out of work.
Second, more than one job has been lost due to an employee’s careless Facebook post airing her personal work grievances. A case in point is In re O’Brien, 2013 WL 132508 (N.J. App. Div. 2013). There, a first-grade teacher for a majority African-American and Hispanic elementary school in Paterson, New Jersey, made two Facebook posts expressing her exasperation with her class, including one that stated: “I’m not a teacher — I’m a warden for future criminals!” Notably, the teacher’s Facebook friends included persons “in the school and in the district.” Through online connections, the teacher’s posts were reported back to the school principal, who suspended and ultimately terminated her for her comments.
Since the teacher was a public employee, she challenged her termination under the First Amendment, arguing that her posts expressed a “matter of public concern” — namely, out-of-control student behavior that impacted learning. The court, however, rejected this argument, finding that the teacher was merely venting her personal frustration with her own students. Her termination was upheld.
Avoid ‘Friending’ Coworkers on Social Media
If possible, avoid “friending” work colleagues on Facebook and other similar networks in the first place. Although this advice may seem unnecessarily restrictive, the simple truth is that online connections, including coworkers, may react negatively to your posts and report them back to management. The off-color joke you post that seems so amusing to you may be interpreted by your coworker as racist or sexist. You may think your replies to your coworker’s Facebook posts are just good-natured, friendly ribbing; he may interpret them as bullying or harassment and tell management the same.
As you’ve no doubt gleaned by now, the intersection of work with social media is fraught with potential mishaps and confusion. If you have a question about whether your social media posts are protected from retaliation, call our offices today for a free consultation.