Social media has become part of the various aspects of people’s lives. Social media platforms have diverse functions and give us numerous avenues for communication, entertainment as well as innovative ways to use it for business and needs like healthcare and marketing. Besides these, Using social media can also positively or negatively affect our lives as employees as it can be the deciding factor for getting or losing a job opportunity, as there have been quite a number of cases wherein employees get fired because of their social media posts due to different reasons.
Given these situations, how does the law interpret social media firing cases? Can an employee fired for social media posts retaliate and pursue legal action? Read below to know more about how employee termination relating to social media posts are dealt with by the law.
Can an Employee Be Fired Any Time for Any Reason?
Employees who are hired “at-will” are workers who are at the mercy of their contracts and employers. “At will” employees can be promptly fired by their employers without due notice and for any reason without needing to provide a “just cause” so long as it is in accordance with anti-discrimination laws. Employers are given discretion in castigating employees and their respective social media activities. This discretion means that employers can freely claim whether someone’s social media activity violates company policy, negatively affects the company’s image or harms the business interests of the company.
Employee Protection and the First Amendment
The First Amendment of the United States Constitution is a section of the United States Bill of Rights that protects the people’s freedom of speech, religion, assembly and press as well as their right to petition. Besides that, this amendment also protects freedom of religion, freedom of assembly, freedom of press, and the right to petition. Given these factors, citizens can freely express opinion, commentary, and grievances on any platform including social media since they are protected by the First Amendment.
While all of this is true, this statute is often misunderstood since the majority of people assume that the First Amendment covers private companies and employers. As with the rest of the US Constitution, the First Amendment is only enforced on the government and exclude the private sector. This exclusion means that your posts on Facebook and offensive Tweets against your employer can get you penalized or terminated from your job.
What Kinds of Social Media Posts can get an Employee Fired?
Most companies have comprehensive social media policies that are enforced on their employees. While some companies do not have specific guidelines regarding the social media matters of their employees, there are kinds of social media posts that should be avoided in order not to jeopardize your job. Below are some of the common types of social media posts an employee should avoid:
Divulging Company Information
Sharing private and sensitive company information on social media is both a security and a strategic risk. Directly or indirectly posting about product and business strategies, staffing decisions, and other private information without the discretion of your company will most likely get an employee fired.
Scandalous Comments About your Employer & Clients
Posting negative comments about your job, your employer, or clients on social media is never a good idea and can get an employee to lose his or her job. Emotionally loaded posts that stray away from constructive behavior may lead to malicious or violent behavior that can carry over the workplace. These kinds of behavior may put a heavy strain on business relationships and affect productivity and overall company morale.
Deceptive Posts
Lying to your employer and posting evidence on social media that could expose your deceit is mostly frowned upon. Examples of deceptive posts include calling in sick while your social media handles show otherwise can get you terminated from work.
Inappropriate Comments
Racist, sexists, off-color, or any other problematic and inappropriate remarks on social media can force your company to fire you. These posts have the potential to go viral which will consequently give the business or company bad PR.
Protected Activities Covered by Law
Despite not being covered by the First Amendment, being disciplined for certain activities on social media can still be straightened out through if it can be classified as a protected activity. They are as follows:
Protected Concerted Activities
Employees have the right to take part in discussions of terms and conditions of employment with the purpose relaying issues to the employer in mind since this is a protected activity under the National Labor Relations Act and other similar state laws. If an employee has been fired for posting about long work hours, low wages, and poor benefits then he or she may have a case against the employer.
Off-Duty Conduct Laws
Initially intended for smokers who are experiencing discrimination and harassment, off-duty conduct laws state that employers are not allowed to discipline or terminate employees for partaking in activities that happen outside company premises and in non-company hours.
What to Do if You’ve Been Fired Wrongfully?
Besides the laws stated above, there are other ways to overcome a wrongful firing incident. If you feel like you have been unlawfully fired because of your social media posts, Do not ignore nor shrug it off so easily. Wronged employees can pursue legal action in court for wrongful termination claims. However, proving these scenarios as wrongful termination cases can prove to be difficult as you will need proper legal advice. In these scenarios, hiring an employment lawyer with extensive knowledge and vast experience in employment law on your side is the best course of action.
Mesriani Law Group, one of the most prolific law firms in California, uses their decades of experience in employment law to take on and win claims for their clients. In their vast experience, they have won over 100 million dollars in damages for their clients and have successfully fought for their clients’ rights. Attorneys well-versed in employment law and wrongful termination cases will be on your side.
