Social media has blurred the line between work and home lives.  People tell the world what they used to keep to themselves or share only with friends or family. Employees use Facebook, Twitter, Reddit, and more to air opinions about managers, working conditions, and even their employers’ products and services. 

Employers generally expect loyalty from employees, and the law supports that view to a degree.  What are employers to do when negative, and even damaging, information on social media finds its way back to management?  As with many employment law questions, the answer is not clear cut.

Most private-sector employees are presumed to be employed “at-will,” meaning the employment relationship can be terminated at any time, with or without cause or notice.  Over the years, the principle has been eroded.  There are several exceptions that may protect even offensive online speech.

Protected Concerted Activities. 

The National Labor Relations Act protects communications among employees that concern wages, hours, and other terms and conditions of employment, whether their workplace is unionized or not.  It may be an “unfair labor practice” to take negative action against employees who criticize their employer and its management about wage-related issues applicable to co-workers, for example.  Even profane and disrespectful criticism about certain policies or managers may fall within the NLRA’s protection.  Personal “gripes,” though, are not protected, because one person complaining alone about a personal situation is not acting in concert with others.

Lawful Off-Duty Conduct. 

The California Labor Commissioner is authorized to assert claims for loss of wages on behalf of employees who are fired for certain kinds of “lawful conduct occurring during nonworking hours away from the employer’s premises.”  However, this protection is limited to off-premises conduct related to matters addressed in the Labor Code, such as whistleblowing about wage violations.

Political Activities. 

California Labor Code sections 1101 and 1102 protect employees’ right to support a cause, promote a candidate, or otherwise engage in political activity without interference by employers.

Whistleblowing.

Many laws protect employees from retaliation for complaining about possible illegal activity in the workplace.  These laws apply when the employee airs these issues to audiences on social media.  Although it may be embarrassing when an employee posts about workplace discrimination or harassment, violation of protected leave laws or wage and hour laws, or safety issues, employers risk liability when they discipline employees for such posts.

Unprotected Speech.

The law does not protect all use of social media.  Employees often believe they have a right to “free speech” under the First Amendment to the United States Constitution.  However, the First Amendment prohibits the government from restricting what we can say (and even that has limits), but it does not apply to private-sector employers and employees.

Employers may take action against employees’ misuse of social media in several situations.  For example, employers have a duty to prevent workplace harassment, discrimination, and retaliation before they occur. Therefore, off-premises racist, sexist, or other bigoted comments about employees, or otherwise linked to the workplace, ordinarily are not protected.  Such comments may harm the employer’s reputation and may adversely affect the workplace when they come to other employees’ attention.  Similarly, employers have the right to discipline employees who are bullying, harassing, or discriminating against co-workers online.

Workplace violence remains a significant concern.  Employers should take seriously employees’ social media posts that threaten or advocate violence in or out of the workplace.

Employers have legal and competitive reasons for keeping certain information confidential.  For example, employers have the right to discipline employees who reveal company trade secrets and other confidential, proprietary information on social media.  However, employers must be cautious to ensure what they deem “confidential” does not fall within the realm of whistleblowing or protected, concerted activity, discussed above.

Finally, employers who make maliciously false statements about co-workers, management, or the company are not protected from disciplinary action.  Similarly, employees who use company trademarks and logos to make offensive statements may violate valid employer policies and rights of their own.  Employees using social media on work time for personal reasons also may be subject to disciplinary action.

Tips for Employers.

Employers should adopt a clear, common-sense policy explaining to employees the types of online activities and content that could get them into trouble at work.  That policy must be drafted carefully to avoid generalizations that could impede lawful speech and violate the NLRA.  An employer’s policy regarding use of company equipment and time to post on social media also may curb some abuses.

Problems often arise when managers are connected to employees through social media.  Once a manager is aware of discriminatory posts, for example, the law might hold the employer responsible for failing to take action if work-related harassment occurs.  Employers therefore should consider whether to discourage supervisors and managers from “friending” or “following” their employees.

Employers should have in place procedures for preserving evidence when an employee posts something inappropriate online, especially if the employee has posted on one of the company’s own social media accounts.  This information may be relevant if a complaint turns into an investigation or litigation.  It is important that the process captures tweets, posts, and other social media content promptly in the event of later deletion.

Finally, it is a good idea to consult with legal counsel when updating social media policies and before disciplining employees for social media posts or other online activities.

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