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Social media presents an unprecedented way for people to share information. Posts are instant, and discussions on hot topics can be started. But with it comes the possibility of having posts that negatively affect businesses, as can happen when the posts expose bad business practices. Or it can happen when employees share complaints about poor work conditions, putting the company in bad light.

What are the employment policies regarding the use of social media in California? 

Seeing the effects that bad use of social media by their employees may have on business, some companies may have rules to curb it. Rules and regulations may involve not allowing employees to use social media during working hours.

Or the company may control what workers post on social media to ensure it conforms with company rules and is unlikely to hurt the business’s image. But companies need to be cautious when imposing the rules, lest they put the business in trouble, in case an employee decides to sue the company over such.

Can an employee be dismissed over a social media post? 

The answer is, yes, it is possible. A majority of states have the ‘at-will’ employment. It means that the employer and employee have equal rights to terminate an employment contract at will. This law gives an employer powers to lawfully terminate an employee’s’ contract based on a post they made on a social media platform. But other laws may still apply which may make such a termination illegal.

What laws may prohibit termination over a social media post? 

A termination based on ‘ at-will’ employment laws may be challenged if: 

• The contract signed between the employer and employee states the grounds for summary dismissal. If termination from posts made on social media is not indicated in the contract, the employee may have reason to challenge the dismissal.
• The labor guidelines issued by the NLRB (National Labor Relations. Board) indicate otherwise. The board issued a statement that seeks to protect employees who engage in discussions involving work-related issues, But the employee has to prove that others contributed to the discussion for the board’s protection guideline to apply.
• If the affected person is a state employee. The First Amendment grants the right to express oneself freely, and employees can use it to argue against a termination they received for expressing themselves on social media. But this right doesn’t legally bind employers in the private sector.

Seeking legal redress in case of termination over a social media post? 

The legality of a termination an employer made on the basis of a media post would depend on various factors; the local laws of the state of California, the clauses contained in the employment contract, and the nature of the post. To decide to challenge the termination or not, the affected employee would need the advice of a lawyer. The lawyer would interpret for them the protection the law offers them, and what laws their employer violated by firing them.

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Currently, almost everyone is using at least one of the different social media platforms available. This has made people use social media as a way to notify other people what is happening around them in real time. Although this may be great in some ways, it can lead to unwanted attention or publicity for a business if employees post business practices related information.

Occupation Policies
Some businesses implement rules regulating the use of social media for its employees because they acknowledge the possible harmful effects it can have on their businesses. The regulations may involve limiting what employee post, prohibiting its use while working as well as not associating oneself with certain, actions, causes and political stance. However, businesses should consider legal implications before proceeding with these things.

At-Will Hire
At-Will Hire means that either the employer or the employee can terminate the job contract at will and many states support that. If an employer doesn’t fire someone illegally, then he or she is allowed to do that legally without offering an explanation. Some illegal things may include discrimination or prohibition of any kind.

Employment Contracts
There are employees sign contracts before they begin working. On the contract, you can find almost everything about the job including grounds for termination, employment relationship among other things. The employee can sue the employer in case there was a breach of contract during the termination of the contract.

Labor Guidelines
In some cases, the NLRB (National Labor Relations Board) may go a step further and clarify when an employer cannot legally fire an employee because of social media posts. NLRB receives thousands of employee complaints, who have been fired because of what they post on their social media accounts, every year.

In order to educate people about forbidden employment practices, NLRB gave a report regarding the matter. According to the report, all employees have a right to engage one another to some extent – protected concerted activity. Employees can discuss work-related issues on social media such as working conditions but labor laws may not cover an individual employee complaining about the job.

First Amendment Rights
Workers can argue that their right to speech is being violated when an employer fire them due to their social media contents. However, the right only caters those interacting with the government. Government employees can enjoy this right and sue anyone violating their right but it does not cover private employees.

Legal Help
Lastly, there is need to consider a number of crucial factors when justifying whether an employee termination, due to their social media activity, is legal. Some factors may include protections available, state laws and protected concerted activity’. A lawyer can guide the employee or employee about legal implications of using social media in a particular state.

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Although employers have the right to monitor their employees’ use of various social media sites during on-duty hours, they don’t have the ability to limit what individuals working for them can post online. However, much as freedom of speech is protected by our constitution, the opinion an employee posts online can significantly affect their status at the work place – and that is where the question of employee social media rights comes in.

Freedom of Speech

The constitution is very clear that every person enjoys the freedom of expression. However, that law only applies to an individual’s interaction with government institutions. When it comes to private companies, one can be fired for expressing an opinion that violates their employers civil rights.

However, there are exceptions to this law. When employees come together to vent out their opinions about a particular issue, then they are protected by the doctrine of “protected concerted activity”.

What Protected Concerted Activity Entails

The protected concerted activity law gives employees the right to discuss, criticize or even disagree with their employer’s policies (including on social media). The word “discuss” is however key. If an individual starts complaining on media about their workplace and how they dislike certain policies solely for the purpose of letting out frustrations without any effort to get other employees to share in that discussion, then that’s not protected under “protected concerted activity”.

A discussion has to take place. That is, other employees must also voice their concerns and engage in an exchange in order for that to qualify as protected concerted activity. However, if one authors a status update or tweet and no other employee joins in, it is treated as a personal issue and therefore one may not enjoy any special protection.

Concerted Activities

An activity is concerted if only it involves several employees’ concerns. In that case, an employee who complains after consulting with other workers, and one who shares out on issues that affect their co-workers may enjoy this protection. On the other hand, an employee who takes to social media to complain on an issue that does not affect other workers (e.g. issues of performance evaluation) is not protected. As the National Labor Relations Board (NLRB) puts it, “personal gripes” are not protected.

Likewise, even if employees act in a concerted way but they behave in a malicious or reckless manner, they will not be protected. Examples of incidences where concerted behavior may be disqualified include when the employees disclose company trade secrets or resort to violent behavior.

Getting Legal Assistance

The question of employee social media rights is quite extensive and complicated. So if you are an employee who believes you have been wrongfully fired or an employer who is considering getting assistance on such a matter, it is important to consult an attorney. In addition, you may wish to refer to the NLRB guidelines on this issue.

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