Can Employees Face Disciplinary Action for Their Social Media Posts?June 16, 2020 – Alerts
Social media has long been an outlet for expression. With the current COVID-19 pandemic, the upcoming elections and the protests surrounding police brutality and racial injustice, social media has been an instrumental platform for sharing opinions and engaging in controversy. A person’s activity on social media is easily accessible to the public, and with personal and professional networks intertwining across various social media platforms, an employee’s content is even more accessible to an employer or colleague.
This begs the question: Can an employee be fired for their social media posts? Yes, but it depends on the circumstances.
Protected Activities and Disparaging the Employer
Employees can be subject to disciplinary action for posting content unfavorable to their employer. However, the law provides some protection to employees who post about the workplace or disparage their employer if those employees are engaged in protected activity.
The National Labor Relations Act (NLRA) makes it unlawful for an employer to interfere with, coerce or restrain an employee’s right to self-organize or engage in “concerted activity,” which includes acting with coworkers or colleagues to address work-related issues such as wages, benefits and working conditions. Employees do not always have to organize as a group in order to be engaged in concerted activity; a single employee may also engage in concerted activity if they are acting on the authority of other employees, bringing group complaints to an employer’s attention, trying to induce group action or seeking to prepare for group action. If an employee is engaging in concerted activity on social media, that activity falls under the protections of the NLRA. Here are a few examples of conduct that are likely protected:
- An employee posts a video on Instagram describing how uncomfortable it is to work with a supervisor who sends her sexually suggestive text messages.
- Employees in a public GroupMe chat discuss how their employer does not adequately compensate them for overtime.
- An employee makes a Facebook post regarding insufficient social distancing and safety precautions in the workplace after returning to work.
- Employees tweet about their employer’s code of conduct being racially discriminatory.
However, protections under the NLRA will not absolve employees of posting social media content that is egregiously offensive, knowingly and maliciously false or that publicly disparages an employer’s products or services if that content is not made in relation to group activity among employees. For example, an employee who shares several tweets about his manager lying to employees about the amount of vacation time available and then adds a false statement such as “I’m not surprised since the company lies to its customers about using child labor in its manufacturing facilities,” will not be protected. In this scenario, since the claim about lying to customers about using child labor is false and unrelated to the group’s complaints, it is unprotected and could subject the employee to disciplinary action.
Whistleblowing is another form of protected activity. An employee engages in whistleblowing when they expose an employer’s improper activity such as fraud, discrimination, bribery or other deceitful or improper conduct. Similarly, employees who expose an employer’s improper activity via social media will likely be protected. Going back to the example above, if the claim about using child labor in the employer’s manufacturing facilities was true, the employee would likely be protected for exposing the employer’s possible violations of child labor laws.
Violation of Employer Policies
Employers generally set workplace parameters with an employee handbook that contains various rules, policies and procedures. Some companies also have a code of conduct regarding employee behavior within and outside of the scope of the employment relationship. The purpose of a code of conduct is to maintain a standard of behavior that is acceptable to the employer and aligns with its mission and values. These policies also serve as a reminder to employees that their personal actions can be attributed to their employer and that a violation of those policies can lead to disciplinary action, including termination.
An employee’s conduct on social media can very well violate their employer’s policies. If an employer’s code of conduct states that it strictly prohibits bullying, an employee’s post or comments taunting a coworker because of their sexual orientation could amount to bullying and a violation of the code. However, conduct subject to discipline does not always have to be related to social media interactions between colleagues. If that same employee was taunting a stranger about their sexual orientation via social media, that too could lead to a violation of the code of conduct if the employer becomes aware of it. Conduct on social media also does not need to be personally derogatory or offensive to violate an employer’s policies. For example, a reporter for a conservative news channel posting a video condemning certain conservative policies in favor of more progressive ones could call into question the news channel’s values and result in disciplinary action against the reporter.
It is also important to remember that content sharing outside of popular social media platforms such as Facebook, Instagram and Twitter may also subject employees to disciplinary action. A review posted to Yelp about unsatisfactory service that mocks the disability of a waitress, or a podcast interview where the manager of an abortion clinic is advocating for a ban on abortions, are both circumstances of employee conduct that could violate an employer’s policies.
Many employers have specific policies regarding social media that prohibit the type of information that can be shared, such as confidential client matters, internal communications or proprietary information. These policies may also police what employees can speak about on behalf of the employer to avoid sharing misleading, inaccurate or private information on the employer’s behalf. However, employers’ policies should not be so broadly construed that they prohibit the kinds of activity protected by federal labor law such as the NLRA or activity that might be protected by state or local law.
Using Company Property
Many companies provide their employees with products and technology to carry out their responsibilities, including cell phones, desktop and laptop computers and tablets. Employers generally have the right and ability to access that property and the software embedded within that property (i.e., email and instant messaging). Some employers have policies against using company property for personal use such as engaging in social media. Because employers own the property and can access its content, employees do not have a reasonable expectation of privacy when using employer-provided property.
Ultimately, employees are free to use their social media platforms to post as they please, but that does not mean they are free from disciplinary action by their employer. Similarly, employers cannot discipline or terminate an employee engaged in protected activity. Disciplinary action should not take place until employers have consulted their policies and made a determination of whether the employee’s activity is protected. Failure to make a well-informed decision about disciplinary action could result in claims of retaliation and/or wrongful termination against employers. Given the growing landscape of social media usage, employers should periodically review and revise their policies to avoid infringing on employee rights and ensure compliance with applicable laws.
For questions about employee social media use, contact Liku Madoshi at [email protected] or 415.364.5534, or any other member of the firm's national Labor & Employment Practice.