Can You Be Fired for Social Media Posts?

I’m just an average man with an average life
I work from nine to five, hey, hell, I pay the price
All I want is to be left alone in my average home
But why do I always feel like I’m in the twilight zone and…?
I always feel like somebody’s watching me
And I have no privacy
I always feel like somebody’s watching me
Tell me is it just a dream?

Somebody’s Watching Me, by Rockwell (featuring Michael Jackson)

What would Jesus tip?

I bet at least 15% on a large, complicated take-out order that was carried out to His car.

Last week, a Miami area waitress spent most of her shift at an Outback Steakhouse readying a take-out order for 25 people. The 75-item order — placed by a church — included 25 steaks, 25 chicken dinners, and 25 sides of potatoes. The total bill: $735. The total tip: $0.

So what does she do? Vents on social media, of course, naming the church involved.

The restaurant quickly fired the waitress for violating the company’s policy regarding posting about customers on social media.

#FacebookFired

You may think your social media posts are personal, for your family and “friends” only.

But what if your boss or co-workers sees something you posted on Facebook and doesn’t like it?

Nobody likes that guy in the White House and everybody has to deal with trolls at work, right? Nope, not everybody and nobody likes to be called a troll.

Can you be fired for something you posted on social media?

First Amendment and At-Will Employment

There are lots of things people pretend to understand, but really don’t. Modern art. Bitcoins. Game of Thrones. Add the First Amendment to that list.

Most people mistakingly believe that the First Amendment protects your right to say whatever you want, online and off.

You’re wrong, Donkey Kong.

The First Amendment protects us from the GOVERNMENT, not from private companies. It prevents the government from passing laws that limit free speech. It does NOT protect you from losing your job over social media posts.

Your employer can fire you over Facebook posts? You bet. Most workers have an “at-will” employment relationship with their employer. This means you can be fired for any reason or no reason, without any warning.

Legal Protections for Your Social Media Posts

There are a few laws that limit an employer’s right to discipline or fire an employee for social media posts. These restrictions depend on what you are posting about.

Protected Concerted Activities. The National Labor Relations Board (NLRB), which sets the rules for the relationship between unions and management, has taken the position that workers cannot be fired for social media posts that would be considered “protected concerted activities.” This can include complaining about working conditions, discrimination and harassment, or using social media to organize a union.

Off-duty conduct. At least half of the states have laws that prohibit an employer from accessing employees’ and applicants’ personal social media accounts. Some states have laws that prohibit employers from disciplining employees from what they do on their own time, as long as it is legal. Other states protect employees from being disciplined based on their political beliefs.

Whistleblowing. If the employee is posting about the employer’s illegal activity, or about fighting against discrimination, he or she may be protected under whistleblower or anti-retaliation laws.

The Bottom Line

So how do you keep yourself out of trouble?

  • Know your company’s policy regarding social media. If you have any questions, ask both HR and your manager.
  • Double-check your privacy settings. Lock down your Facebook account so only your friends can see your timeline. And pay attention to who you add as a friend.
  • Have public accounts for work, and separate, private accounts for your personal life.
  • If you insist on keep your accounts public, consider removing your employer from your bio and refrain from posting about work.

Final word of warning. Anything you post online is potentially public. Anyone can take a screenshot or copy and pass on your post without you knowing.

Do you post about your job on social media? Leave a comment or send me an e-mail.

Disclaimer: This website is made available for educational purposes only as well as to give general information and a general understanding of the law, not to provide specific legal advice. By using this website you understand that there is no attorney client relationship between you and the publisher. The website should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

Copyright © 2018 by Siobhán Fitzpatrick Kratovil. All Rights Reserved.

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