Can you be fired for using of Social Media?

The new age of modernization arising over recent years has created an emergence of social media usage. Whether it is Facebook, Twitter, Instagram, Snapchat, or a variety of other forms of social media, people constantly document their lives and thoughts on the Internet. Therefore, the risk of termination of employment has increased, due to social media usage. In fact, in most recent months, terminations for social media posts have risen over content relating to COVID-19 and the Black Lives Matter movement. Thus, people should be aware of their rights, while employed, on social media platforms.

First and foremost as a general rule, employers have the right to terminate employees for any lawful reasons. Terminating an employee for their use of social media could be construed as a lawful reason. However, there are some protections afforded to employees who are facing possible termination for their social media postings.

Before we introduce you to these protections, please be aware that the law on social media usage relating to employment is changing every day. Therefore, it is crucial to hire an attorney if you plan on suing your employer for a potential wrongful termination claim.

 

Protections

 

Posts outside of working hours:

Unsurprisingly, social media posts during working hours are discouraged by employers. If you post something on social media during working hours–of which your employer is not happy with–it will most likely be grounds for termination. Employers have a reasonable expectation that you will put forth all of your attention to work and not social media, thus they generally will not have trouble in moving forward with a valid termination of your employment.

In contrast, if you post something on social media outside of working hours, you generally have more freedom from retaliation by your employer.

Thus, ask yourself: was this post you made during working hours? Was it on the weekend? Was it during a break? Was it after work? Be ready to answer these questions before you move forward with an attorney consultation on this matter.

Posts concerning the working conditions of your employment:

Employees have strong legal protection when they are discussing matters of workplace conditions. Such workplace conditions include, but are not limited to:

      1. Harassment
      2. Vacation time; sick days
      3. Union discouragement
      4. Pay rate
      5. Unsafe working conditions

However, there is not a generally established blanket rule for these types of posts. Instead, posts relating to any of the working conditions made above that are false or misleading are not afforded any protection. 

Therefore, if you claim on social media that your employer is stripping your vacation time, yet there is no such indication of that, you could be fired for a false claim relating to workplace conditions.

Final Thoughts:

First Amendment:
Some of you may be wondering, why doesn’t the First Amendment protect my posts on social media? Doesn’t the First Amendment afford everyone the general right of Freedom of Speech?

Unfortunately, the First Amendment only applies to the government. Private employers do not have to abide by the First Amendment. This is doctrine under the law of government/state action.

Privacy setting on social media:

Sadly, just because your social media account is set to private, does not mean an employer cannot fire you for what you post on your private account. Because of the public nature of Facebook, Instagram, and Twitter, courts have held there is not a general expectation of privacy when you post on social media. Therefore, be aware of this if you believe setting your posts and account to private will save your job.

Employment agreement/Handbook:

Employers are restrictive as to what you can and cannot post on social media. They will explicitly state those restrictions either in your agreement for employment or any employee handbook. Take a look at them to see where your employer stands on an employee’s use of social media.

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Remember, you should always consult an attorney. There’s no need to take these matters into your own hands when high quality legal advice has gotten so affordable. JUSTLAW is here to help. Feel free to schedule a meeting with one of our attorneys if you’d like to learn more.

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