According to a survey conducted in 2018 by The Harris Poll on behalf of CareerBuilder, over 70% of hiring and human resource managers in the US utilize social networking sites to research job candidates during the hiring process. The above statistic highlights the growing importance of social media in job search and the need for job seekers to maintain an active and professional online presence. For instance, employers may enter a prospective employee’s name into the Google search box and pull up their Facebook, Instagram, LinkedIn, Twitter, and TikTok accounts. However, whether as an applicant or employee, to what extent can your online presence and activity affect your career, your position at work, and your professional relationships?
In today’s digital world, social media platforms have become integral to our lives, enabling us to connect, share, and express ourselves online. However, with positives also comes negatives. Social media has brought about a lot of legal issues, especially in the workplace. For example, social media has implications in wrongful termination cases, such as when an employee’s online activity results in them losing their job. Below we examine the legal consequences of privacy, freedom of speech, and employee rights, providing valuable insights for employees and employers.
Social Media in the Workplace
Social media has become a popular outlet for people to share their thoughts, feelings, and personal lives. However, when an employee’s social media activity conflicts with their work, it can lead to serious employment issues. Nowadays, employers check in on or sometimes closely monitor their employees’ online presence, and sometimes, their social media activity can even result in termination.
Factors Concerning Privacy
Regarding social media and wrongful termination, the right to privacy is a major issue. While employees can expect a certain level of privacy in their personal lives, this expectation is not absolute. When their online behavior impacts the workplace, employers may argue that an employee’s online activity reflects poorly on the company or breaches confidentiality obligations, potentially justifying termination; the above is especially true.
Freedom of Speech and Employee Rights
While the First Amendment safeguards freedom of speech from government intervention, it doesn’t offer the same protection for private employment. Fortunately, California labor laws provide some security for employees’ freedom of speech rights. They have the liberty to partake in lawful off-duty conduct, like expressing their opinions on social media, without the fear of employer retaliation. Nevertheless, it’s essential to note that this right has some restrictions. For instance, if an employee’s online conduct discredits their employer or creates a hostile work environment, it may lead to consequences.
Causes of Wrongful Termination:
Various examples showcase how social media can affect cases of wrongful termination. The following instances are exceedingly common and must be noted:
- Unprofessional Conduct: Employees must be mindful of the content they share on social media and avoid any offensive, discriminatory, or harassing posts. Such actions could breach company policies and result in disciplinary measures or even job termination. Becoming acquainted with the employee handbook, workplace, and company policies at any new or existing job would be best. Doing so ensures that you are aware of the company’s guidelines and expectations and will help you operate within their parameters. It would be helpful to be mindful of platform settings, particularly privacy settings when posting on social media and sharing material someone else has posted, commenting, and even submitting reactions to particular content items. You can still express yourself, but be mindful of your tone and the policies you agree to by signing on as an employee. You can inadvertently alter the image of what seems like average wholesome content in many ways, especially when posting publicly on a popular social media app. For example, we often use hashtags online to generate more traffic and engagement on our posts; however, it is best to search the hashtag you intend to use to ensure there are no unfavorable or inappropriate videos or trends associated with that hashtag. It’s important to be cautious of using hashtags on social media, as they can sometimes be hijacked by individuals with malicious intentions. Their harmful or negative content may receive a boost in views. As a result, you could unintentionally associate yourself with unsavory or even illegal content.
- Breach of Confidentiality: It’s critical to keep confidential company information and trade secrets off of social media platforms, as it can result in termination. Such actions could harm the employer’s interests and damage the company’s reputation. Again, it is necessary to maintain professionalism and discretion when representing the company online. Note: You must also think in the short and long term. Will posting this or supporting this group impact my future career goals and prospects?
- Negative Comments about Employers: Even if done outside of work hours, it’s important to be cautious about criticizing one’s employer on social media, as it can potentially lead to negative employment consequences. However, employees may be safeguarded if they engage in protected organized or joint activity under the National Labor Relations Act (NLRA).
- Online Misrepresentations: Misrepresenting one’s qualifications, job responsibilities, or work experience on social media can lead to losing trust and credibility with an employer, which may ultimately result in termination. When striving to maintain a positive and professional reputation, it’s paramount to put forth and preserve honesty and be transparent about your professional background.
Employer Responsibilities and Legal Implications
It is critical for employers to be aware of the legal consequences of social media use and terminating employees unfairly. To avoid any issues, it is crucial to establish clear policies that address social media usage and outline the consequences of inappropriate online behavior. It is vital to balance safeguarding the employer’s interests while also respecting the employees’ rights. Furthermore, employers must consistently enforce policies to avoid selective enforcement or retaliation claims.
Selective enforcement refers to employers’ inconsistent application or enforcement of company policies. It occurs when an employer unfairly targets certain employees for disciplinary actions or adverse treatment while overlooking similar conduct by others. In social media, selective enforcement could manifest as an employer taking action against an employee based on their online activity while ignoring equivalent behavior by other employees, potentially raising concerns of bias, discrimination, or unfair treatment.
Discrimination and Retaliation Claims
In California, discrimination allegations regarding social media activity and workers can arise when an employee undergoes adverse employment actions due to social media posts pertaining to protected characteristics like gender, religion, race, or disability. If an employer demotes, terminates, or mistreats an employee based on their social media activity linked to a protected characteristic, it could be considered discriminatory under California law. Even with their online presence, employees have the right to be free from such discriminatory conduct.
In California, retaliation claims concerning social media activity arise when an employee suffers negative employment consequences for engaging in protected activities or exercising their legal rights. If an employee experiences termination, demotion, harassment, or any other form of mistreatment because of their social media posts related to protected activities, such as reporting workplace discrimination or participating in union activities, it may qualify as retaliation. California law ensures that employees are safeguarded from such retaliation when engaging in protected activities, and employers are prohibited from bringing forward adverse actions against their employees in response to lawful social media activity associated with their workplace rights.
Employees should be mindful of their rights and protections regarding discrimination and retaliation based on social media activity in California. It is crucial to seek advice from an employment law attorney to comprehend the specific circumstances of their case and determine the proper legal action to defend their rights.
Employers should always avoid poor practices like showing favoritism in the workplace, particularly when enforcing policies related to employee online behavior. Additionally, employers should never seek revenge or retaliation against employees. It is best to consult with a seasoned employment attorney if you have concerns regarding an employee, potential company policy violations, or the company’s or an employee’s representation on social media. As an employee, it’s important to know your rights, record any instances where you’ve been targeted unfairly or retaliated against, and seek legal advice if you feel you have been wrongfully terminated or your rights have been violated.
Note: In any case of wrongful termination, discrimination, and retaliation, documentation is paramount and substantial in establishing your claim.
Protection for Employees and Legal Recourse
If an employee feels that their termination was unjust due to their social media activity, they may have legal options available to them. It is important to seek guidance from a knowledgeable employment lawyer to comprehend these options fully. In California, labor laws such as the CA Labor Code and the Fair Employment and Housing Act (FEHA) offer protection from discrimination, retaliation, and wrongful termination. The NLRB states that employees can participate in “concerted activities” without facing the threat of being fired.
Present and Future Considerations
Social media has become a significant part of our personal and professional lives. As such, workers and employers must understand its impact on legal cases related to wrongful termination. Employees should be prudent and mindful when sharing content online, especially concerning their work or employer. For example, to avoid any negative perceptions or risk your standing at your place of employment, it’s advisable not to share content in which you are wearing your work uniform, especially if the behavior displayed in the video is questionable or the content could be interpreted negatively.
Alternatively, employers must balance their and the company’s interests while respecting their workers’ rights and privacy. By navigating the legal implications, setting clear policies, and promoting open communication, workplaces can lessen the risks related to social media and create a more inclusive and transparent work environment.
Social Media Connected Wrongful Termination Cases
If you are a current or former employee who feels that you have been wrongfully terminated, discriminated against, retaliated against, or otherwise unfairly mistreated due to your social media activity, it’s essential to familiarize yourself with state and federal regulations and the opinion of a skilled professional on the matter. If you have concerns regarding your employment rights,schedule a free and confidential consultation with an experienced Bay Area employment law attorney. They will provide the support and guidance necessary to navigate complex laws associated with these matters. Your lawyer will provide robust representation where required and, most importantly, protect your rights.
Employers encountering situations regarding employee social media portrayal of their business or a policy breach should consult a skilled California employment lawyer. It’s important to be well-versed in the latest federal and state employment regulations before making any decisions and not let emotions or impulsiveness guide your actions.
