Over the past 20 years, social media apps have grown to dominate many aspects of our lives. For many people, social media is where we go for news, entertainment, shopping, and to keep in touch with family and friends. As an employee, it’s important to remember that the posts you make, like, and share are not always private; in many cases, they can be seen publicly, whether you want them to be or not. Plenty of employees have found that out the hard way when they were fired or disciplined for their social media activities.
As an employee, you may be wondering what your rights are regarding social media. Is it legal for your employer to fire you for your social media posts? What protections do you have under the First Amendment and other laws? The team of top labor and employment attorneys at Malamut Law has a breakdown of your social media rights as an employee.
Can You Be Legally Fired or Disciplined for Social Media Activities?
Generally speaking, your employer can fire you for any lawful reason, including what you post or interact with on social media. Suppose they feel your social media activities are detrimental to the company. In that case, you can be disciplined or fired, especially if you conducted those activities during work hours or when acting as an official online company representative.
Even outside of work hours, you may not be safe from disciplinary action at work, even if your social media accounts are set to private. Courts have established that anything posted on a public forum is public information. If someone on your friend list were to share a screenshot of your post with your employer, for example, they may still take disciplinary action whether or not they were personally able to view the post.
Remember that the First Amendment protects you from being criminally prosecuted for your social media posts (within established limits). It does not protect you from being fired or disciplined by your employer unless you work for the government. Some courts have made exceptions for government employees who were speaking about matters of public concern and did not disrupt the workplace.
Social Media Protections for Employees
While you could be disciplined or fired for a wide range of social media content and actions, some protections exist under the law. If you are being disciplined at work for your social media activities, you may be protected if:
- Your post was related to your workplace conditions – Whistleblowers are protected from retaliation under the law, even when posting on social media during and after work hours. If your post was truthful and intended to bring light to workplace issues like pay disparity, harassment, union activities, unsafe working conditions, and other illegal employment practices, you may be able to sue them for firing or disciplining you.
Your employer is using social media presence as cover to fire you for an illegal reason. It is unlawful for your employer to fire or discipline you based on the following:
- Race, nationality, sex, religious affiliation, disability, or any other protected class
- Whistleblowing activities
- Punishment for exercising your legal rights (i.e., taking family leave)
If your employer has fired or disciplined you in close proximity to any of these situations, it is possible that they are using your social media activities as an excuse to fire you legally. If you have documentation that you were being discriminated against, for example, a labor and employment attorney may be able to help you get compensation for any disciplinary action that was taken related to your social media use.
- Your employer’s social media policy is unreasonably restrictive – If you are facing termination or disciplinary action at work for your social media presence, be sure to look carefully at your employee handbook. If your company’s social media policies specifically restrict posting about workplace conditions from talking about your employer’s illegal activities or any other type of protected speech, they may be unlawful.
Employment law regarding social media use is relatively new, and the courts’ opinions on these matters are constantly evolving. Any time you are being disciplined or fired at work for your social media activities, it is a good idea to speak to a labor and employment lawyer about your circumstances. You could be entitled to compensation, but it’s up to you to hire a lawyer and make your case.
At Malamut Law, we have combined decades of experience in labor and employment law, and we will be happy to review your case free of charge. Call us today at (856) 424-1808 if you need a labor and employment lawyer in New Jersey.
