About 1 in 25 Americans say their social media posts have led to negative consequences at work, including reprimands and even firings, a new FindLaw.com survey reveals. That raises the question: Is it legal to punish or terminate a worker for social media activity?
As you probably know, wrongful termination is a common claim when it comes to ex-employee lawsuits. While some employers may be justified in terminating a worker because of reckless social media behavior, other Facebook- and Twitter-related firings may actually be unlawful -- especially if the firing infringes on a worker's rights.
How do you know if your social media-related termination (or other negative consequence) has crossed the line? Here are some general legal pointers:
- Be familiar with your workplace policies. Nowadays, more employers are requiring employees to sign off on social media policies in the workplace. Some of the most typical policies bar the disclosure of intellectual property and prohibit workers from sharing customers' private data online. If you violate these policies, your termination will likely be upheld.
- Some workplace policies go too far. As FindLaw's blogs have explained, some workplace social media policies are poorly worded and can be construed as overreaching. For example, a policy that prohibits the posting of "confidential" information should clearly define what "confidential" means. Otherwise, it may be too vague to be enforced, the National Labor Relations Board has held.
- "Concerted activity" is protected. The National Labor Relations Act generally protects "concerted activity" by employees about improving work conditions. As a case from earlier this year shows, even a heated dialogue between two workers on Facebook can potentially be protected under the law.
So while many social media-related firings are indeed proper (like the Walmart worker recently fired for disparaging customers on Facebook), other negative employment consequences related to online posts can potentially be challenged in court.
If you suspect your lawful social media activity has led to unfair consequences at work, you may want to discuss the matter with an experienced employment lawyer near you.
-- Michelle Croteau, Director of Marketing Communications
with Andrew Chow, FindLaw Audience Team