A law firm administrative manager got fed up this summer with requests to wear masks, even though he said he had tested negative for COVID-19. In a rant on his personal Facebook page, the Texas man vented his frustration in a big way, circling around to mentions of a handgun and hollow-point bullets.
The threatening post promptly resulted in a pink slip for the man, whose longtime employer publicly apologized for the incident, saying it violated the firm’s values and merited a notification of the proper authorities.
Now we don’t know much about this man personally, but we do know that it’s easy to mess up on social media. A hotheaded moment, a few clicks, a post — and a career derailed.
Particularly recently, countless stories detail how personal social media posts have resulted in firings, in roles that run the gamut from professionals to public servants. During a tense time in history, with COVID-19 compounding the stress and cravings for social contact, remarks that are violent, threatening, racially charged or just plain insensitive can land employees in hot water.
It’s true that we live in a country where people prize their First Amendment right to free speech — but while that right protects us from government retaliation, it doesn’t mean we can say whatever we want without consequences. When it comes to our employers, those consequences can vary from disciplinary action to firing to being turned in to the authorities. Still, employees have some latitude — and knowing your rights is key to protecting your rights.
Here’s a primer on seven social media no-no’s at work, as well as how to protect yourself:
- Violate the employee handbook.
This may seem obvious, but some employees never crack open their handbooks. Get familiar with any guidelines or restrictions on social media use. They may primarily involve ethics, discrimination or bullying, but in industries such as health care or technology, there may be an emphasis on confidentiality too. Similarly, if your employer has a public stance on certain issues, the social media policy may limit workers from publicly contradicting those issues. Again, this is the fine line between what you can say under the constitution and what you can say under your employment contract.
On the flip side, familiarity with such rules — or lack thereof — may help you effectively defend yourself if you face complaints about personal social media use.
- Post something egregiously offensive.
Wait a beat before you post something on social media, particularly if it’s flippant or if your blood is boiling. Read it again in a minute or two, after you’ve been able to come back to it with fresh eyes. Given the many fraught issues these days, tread lightly when it comes to controversial topics — especially if, as in our example at the beginning of this blog, there is any mention of violence, threats or weapons.
However, employers can’t fire you for discriminatory reasons, including political activity/affiliation or lack thereof. And employers can’t fabricate reasons to fire you when their real motives are illegitimate. There are many government agencies designed to protect employees from all sorts of discrimination, such as the Equal Employment Opportunity Commission, National Labor Relations Board, Office of Special Counsel and Merit Systems Protection Board.
Still, keep in mind that social media posts often can be misinterpreted, even posts on public review sites such as Yelp or Amazon. Remember that nothing on the Internet truly disappears — a simple screen shot could turn a post you tried to delete into a major headache.
- Share confidential company information.
We touched on this earlier, but it’s worth emphasizing on its own. Whether it’s about clients/patients, internal operations or trade secrets, it’s best to steer clear. Even if employees are posting about something that’s not specifically about their jobs, sometimes they can reveal things without meaning to — particularly if they’re talking to someone on social media that they don’t actually know.
Certain California companies deal very harshly with leaks. Remember in 2018 when Apple cracked down on 29 leakers, including having 12 arrested? This doesn’t mean the companies are always in the right — we advocate for workers who find themselves in conflict with their employers — but it does mean they can make life difficult or make it hard to find another job.
- Lie about working conditions at your job.
Certain complaints and whistleblowing are protected from retaliation, but those protections don’t apply to malicious, knowing lies.
Controversial statements aren’t lies, though. Public complaints about sexual harassment, underpayment, lack of COVID-19 safeguards, or policies that seem to discriminate based on race or age likely would be protected. We specialize in helping employees who face retaliation for bringing to light illegal, discriminatory or other wrong actions by their employers.
- Publicly disparaging your employer’s products or services.
It’s no mental leap that publicly complaining about your job probably wouldn’t do you any favors at work. However, it’s important to note that this speech is protected if the content is made in relation to a group activity among employees. The NLRB gives employees the right to form or join unions and “engage in protected, concerted activities to address or improve working conditions” (or the right not to do those things).
- Posting during working hours.
Employers are likely to scrutinize your posts more strictly if they were made while you were on the clock (not during set breaks). If you’re being paid to work but are spending that time making personal posts on social media, you’re asking for trouble.
- Using company property to post.
If you are using your work computer — or a work-provided phone or other device — to post on social media, your company has a lot more say in what you can do. Employers typically have the right to access those devices and any software on them, and they may have policies against using company property for personal use.
Facing a tough situation? Seek the right advocate. While there are limits, you have many rights and protections under the law. If you and your employer are at odds over social media use, Keller Grover offers free consultations to advise workers about their specific situations. In more than 25 years litigating fraud and employment cases, the lawyers at Keller Grover have recovered hundreds of millions of dollars for clients and class members.