Hiring, Firing, HR Tweets, Social Media Posts and Your Employment Rights

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  1. This article discusses whether you can be fired for your posts on a blog or social network such as Twitter, Facebook, MySpace or Linked In.

    While you may have your own blog, a Facebook or MySpace page, a Twitter account or a membership on another social network, you are ultimately responsible for what you post and who sees it. No matter which microblogging or social networking site you participate, you must be extra careful about what you write and choose to share with the public at large. You may be fired for entries that your employer may read and does not like or agree. However, there are some limits to what an employer can do about the posts that employees make on the Internet during their own private time away from the workplace.

    First Amendment and Rights of Privacy Rarely Apply

    The personal right of free speech is a liberty provided by the First Amendment to the US Constitution. However, many people mistakenly assume that this Constitutional right affords them the freedom to share their thoughts by expressing themselves online without fear of any repercussions. The First Amendment prevents the government, not private companies, from censoring or taking action against protected free speech.

    There are many legitimate reasons a company may have to terminate a person's employment as a result of negative posts relating to the company on a blog or social network. The company can reason that termination of the employee is necessary since the employee's negative comments about their job, the workplace or other co-workers may create a very uncomfortable working environment. An employer can easily justify replacing such an employee with another person who is not as jaded or negative about the workplace and who will likely be more productive and less disruptive. Another important additional fact to recognize is that, in most states, employment is only at-will. An employer can terminate an employee at any time without a need to provide any reason at all, making claims of discrimination or other wrongful termination difficult to prove.

    The National Labor Relations Board (NLRB) assisted an emergency medical technician (EMT) who was fired for her derogatory complaints about her supervisor on Facebook. She was charged with violating a company policy barring employees from describing or portraying the company “in any way” on a blog, Facebook, MySpace, Twitter or other social networking site. The NLRB’s position was that the woman and her friends were merely employees talking jointly about working conditions and their supervisor – which they would have a right to do online or offline. While the case was settled, the question of whether any privacy rights might exist still remains open – such as whether students can make derogatory posts about their teachers on blogs and social networks.

    Laws Protecting Bloggers and Social Network Members

    There are some legal limitations on an employer’s ability to terminate your employment as a result of what you may write on a blog. The content you write in your blog or in a social network post will determine whether you may be protected from workplace discipline or termination of employment. Bloggers who complain about office conditions away from work are protected by laws prohibiting employer retaliation in the same way as they would be protected for complaints voiced at the office. Some state laws have and are in the process of enacting laws that protect the private conduct of employees away from the office. Examples of these types of laws include the following:
    • Laws Protecting Off-Duty Conduct

      Some states have laws prohibiting employers from firing or disciplining employees for activities done on their own time. The original intent of these laws was to protect smokers from discrimination by employers at the workplace. Many of these smoker protection laws contain broad language that suggests that there is protection in general for any lawful activity, which may include private blogs.
    • Laws Protecting Political Beliefs

      Some state laws specifically protect employees from discrimination as a result of their political affiliation or beliefs. An employee who blogs privately about a particular political candidate or religious belief may not be terminated by their employer as a result of having such a blog.
    • Laws Prohibiting Retaliation

      Numerous state laws prohibit employers from retaliating against employees who make claims that their legal rights were violated in the workplace. A blog complaining about sexual harassment in the workplace, racial discrimination, violations of the Family and Medical Leave Act, violations of wage and hour laws or any other law or legal right may be protected from disciplinary action.
    • Laws Protecting Whistleblowers

      Whistleblower laws may apply to those who raise concerns about illegal activities or safety hazards in the workplace on their private blog. These “whistlebloggers” serve the public good and the law needs to protect those brave enough to come forward against workplace retaliation.
    • Laws Protecting Concerted Activities

      Legal protection is afforded workers who communicate with each other for the purpose of discussing workplace terms and conditions as well as gauging the interest of other employees in joining a union and share forces in raising such concerns to an employer. In some states, there may be protection for private complaints in a blog concerning excessive overtime, extremely poor work conditions and other similar topics likely to be raised by a union representative.

    How to Blog and Avoid Trouble

    The following are tips to help you stay out of trouble when blogging, micrlogging on sites like Twitter or contributing your comments on a social network such as Facebook, MySpace or Linked In:

    If you don’t think that your blog entry or public comments might be protected speech under any of the above laws, you should think very carefully about whether the post is worth the risk of non-protection.
    • In Australia, a man wrote took a sick day off from work the morning after a very late night of drinking and carousing. After the employee refused to provide a medical certificate stating a valid reason for his sick leave, his employer showed the employee the employee's own Facebook post about the previous evening’s events which clearly explained the sick leave request.
    • In the United Kingdom, a teenager was fired for repeatedly complaining on Facebook about how dull and boring she was at work and how there was nothing for her to do. The employer reasoned that her poor worth ethic and attitude, now shared with everyone in the company, negatively affected the workplace environment.

    Never use your blog to make fun of any of your work colleagues or to make comments about them in a way that could be construed as harassment.It doesn’t matter if the employee you are mocking doesn’t mind because, if your employer reads the post, the employer could reasonably find that negative repercussions exist.
    • A California company fired 27 employees for their participation in a public discussion on MySpace regarding the weight and sexual orientation co-workers.
    • A high ranking Los Angeles woman was fired from her job as a web designer and graphic artist as a result of her blog postings (on dooce.com) which satirized her dot-com workplace and the employees. Realizing her mistake, her advice later to other bloggers was “be ye not so stupid.”

    Avoid making posts that could be appear to be or have overtones that are sexist or racist.
    • Even if you find these posts humorous, others might be offended, very uncomfortable and interpret your comments very differently than you may have intended. Your employer may even feel pressure to fire you because the comments may have made many other employees uneasy on-the-job in your presence
      • A newspaper editor and reporter published MySpace posts complaining about his African American neighbors who partied into the night. While he attempted to make a joke about whether such annoying carousing led to the assassination of Dr. Martin Luther King, his employer was not equally amused and he was terminated immediately from his job.

    Avoid making posts on blogs or social networks that may the disclose trade secrets or confidential information of your employer.
    • A Microsoft employee posted pictures of Apple Macintosh computers at the company location trying to brag about how even Microsoft wanted them. A Friendster engineer wrote revealing posts about the social networking website’s infrastructure upgrade. Both were terminated from their jobs.

    If you have problems at work, first try to use available channels to solve such problems before complaining in your blog or on a social networking website.
    • Even if you may be protected by whistleblower laws, there are usually better ways to take care of problems than airing out dirty laundry on a blog or social network for the whole world to see. You could still lose your job even if you have the right to fight it in court – is this really the result that you were seeking?
      • An employee at a major technology company aired his concerns about his employer’s substandard design work for Coast Guard patrol boats in a YouTube video. While worker was proven right in a government study and won an award for his ethics as a whistleblower, he still found himself without a job.

    Blogging anonymously or to a restricted, screened group of people provides a much larger measure of protection than open blogging on a website or social network.
    • Not providing details in your posts that could identify you, your employer or fellow employees also provides for a far better measure of job safety if you feel the need to share your thoughts with the world at large.
    Employment & Labor:
    Termination, Firing

    Michael M. Wechsler

    Michael M. Wechsler
    Michael M. Wechsler is an experienced attorney, founder of TheLaw.com and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at Zedge.net and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.
    Jhayzkey4689 likes this.

Comments

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  1. Jason A. Rodenbo
    I found this article helpful in the matters of "Social Sites" and the liabilities associated with social posts and commenting.

    Your article helped me to see the importance that individuals must place upon the content which is shared on social websites like Twitter, Facebook, Google Plus and others.

    The fact is, someone could be fired for sharing comments regarding their employer or that of a fellow employee.

    I would also like to know what limits exists for when an employer (will not /can not use) the legal liability options available to those of us who use social sites as a way to publicly express our feelings.

    This I do know... "many people mistakenly assume that this Constitutional right affords them the freedom to share their thoughts by expressing themselves online without fear of any repercussions."

    Not all social shares concerning your employer should cause you liability concerns. For example, should your social share
    involve an illegal activity tied to your employer.

    I personally like this law that protects 'whistleblowers'...

    I will consider the online comments I share more closely going forward. Should You?