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Social media is everywhere, and it is rare to find a person who is not in some way, shape, or form using at least one social media platform. Apps such as Facebook, Instagram, Twitter, and Snapchat have revolutionized the way in which we communicate. This can be both a blessing and a curse. While the platforms allow us to communicate effortlessly and stay engaged with friends and family, they also broadcast much of what we say to audiences beyond our control and/or knowledge. A decade ago, if you had a long day at work you could come home and vent to friends in person or over the phone. Today, you can utilize social media and catalog a laundry list of complaints for your entire social media ‘family’ to see.

When you post to social media – whether it is something negative about work, concerning your political activity, a comment about a co-worker, or something more mundane – can your employer fire, punish, or reprimand you for your conduct? This has been a hot topic since social media exploded in popularity. Results of employment discrimination lawsuits by terminated employees have been mixed. The law is still evolving and rushing to catch up to the ever-changing digital world in which we live. For the moment, an employer may or may not be legally entitled to terminate or discipline an employee for social media posts. The legality will hinge on the content and type of employer.

Don’t I Have a First Amendment Right to Free Speech?

 Yes, but the First Amendment protects you against blowback or retaliation by the government. Private employers are not restricted by the First Amendment and have more latitude in terminating or reprimanding at-will employees. If you are a government employee you may be more successful in asserting a First Amendment claim. In 1968, the Supreme Court ruled that “interests of the employee as a citizen, in commenting on matters of public concern” need to be balanced against the ‘interest of the [government] as an employer, in promoting efficiency of the public services it performs through its employees.” Basically, it is important to determine if statements made (or in this case, social media posts) by public employees are in an official capacity or as private citizens.

Even though private employers may not be burdened by the First Amendment, this is not to say that they are not subject to other laws designed to protect employees from discriminatory firings or retaliation.

Laws Offering Employee Protections 

The law is always evolving and adapting to our fast-paced world. Until a court speaks out directly about the appropriateness of social media-related firings, the laws that apply more generally to employee conduct will be the best line of defense in the event of employer retaliation.

Off-Duty Conduct Laws. California Labor Code Section 96(k) offers protection for an employee’s off-duty conduct – including social media behavior. Section 96(k) provides the labor commissioner with the ability to make claims on behalf of employees for lost wages if they were demoted, suspended, or discharged for lawful activities conducted away from their employer’s property. While this does not prohibit employers from firing, demoting, or suspending employees for social media posts, it does create an avenue for employees to recover compensation they lose as a result of the employer’s action.

Anti-Discrimination Laws. In California, it is illegal for an employer to discriminate against an employee or prospective employee on the basis of political activity or affiliation. Companies with 5 or more employees are subject to the state anti-discrimination laws and companies with 15-20 or more employees are subject to federal anti-discrimination laws. If you are fired, suspended, receive a pay cut, or are subject to other adverse action as a result of your political social media posts you may be protected by law.

Additionally, if you are fired, suspended, receive a pay cut, or are subject to other adverse action as a result of a social media post concerning any of the following, you may be protected by law:

  • Age, race, national origin, or gender discrimination;
  • Harassment;
  • Violation of the Family Medical Leave Act;
  • Wage and hour violations; and
  • Other similar areas of concern.

Whistleblower Laws. Posts to social media concerning safety conditions or illegal activity of an employer may be protected under Federal and California state whistleblower laws. California Labor Code Sections 1102.5-1105 prohibit employers from retaliating against for or preventing employees from disclosing information to a law enforcement agency or government entity if he or she has “reasonable cause to believe there is a violation.”

Take Precautions: Keep Social Media Posts Truly Private

 If you are truly concerned about employer retaliation for social media posts you should be mindful of a few things. First, there are a few topics/behaviors that will generally not be protected by law. An employer may be entitled to fire, demote, or suspend an employee for social media posts that include:

  • Racist, sexist, bigoted, or otherwise crude comments;
  • Criticism or mocking of other employees or co-workers;
  • Revealing trade secrets; and
  • Revealing confidential information.

Even posts made as a joke can be grounds for termination if that joke crosses the line. The best way to keep your employer from taking adverse action is to ensure that they don’t see what you post. To minimize the potential for inadvertent and unwanted audiences:

  • Keep accounts private and limited to individuals you know and approve; or
  • Blog anonymously if you need to blow off steam.

If you have a problem with your employer, the way they run their business, or with a co-worker try to speak with them directly first rather than running to social media.

Experienced Employment Law Attorneys

If you have been fired, suspended, or demoted because of a social media post or presence you should contact an experienced California employment law attorney to learn about your legal rights and options. In some cases, your speech may be protected by Federal and/or California state anti-discrimination laws. An employment law attorney will review your case, explain your rights, and determine if you have a viable claim for damages. Contact the attorneys at the Briski Law Firm today for a free consultation.