Can Personal Posts become Professional Problems?
Isabel Smrstik
Associate Editor
Loyola University Chicago School of Law, JD 2027
Social media is an unavoidable part of everyday life, it is how people communicate and document their experiences. However, it is very easy for an informal post to go beyond the intended audience of close family and friends, reaching the general public. This means that one’s persona on social media can be seen by employers as a proxy for their professionalism and personal judgment. While the internet operates as a virtual “Wild West” with little to no rules, federal organizations offer some guidance as to employees’ communication and expression on social media like the National Labor Relations Board (NLRB). Ultimately it is on the employees to understand the risks a social media presence poses and what protections exist.
Common Types of Risky Social Media Behavior:
The professional problems that come from a social media presence are not limited to extreme misconduct. Oftentimes content can be made with good intentions, like simply sharing one’s typical day at work, and the camera happens to capture confidential information that can be detrimental to an employer. One recent example includes a woman who was filming her life as a store manager at the MAC cosmetic store within the Los Angeles Airport. Within her videos showing new products, she also showed her security credentials, time stamps involving money transactions, and confidential scheduling processes within the large airport. The security risks her content posed to her employer ultimately led to her termination.
Risky social media behavior is not just exposing a company’s confidential information. Other types of social media posts that may result in an employee’s termination include: posts that harm or undermine the company’s reputation, content that includes false or misleading statements about the employer, or any comments that contain offensive, discriminatory, or inappropriate language. Many people on social media view their content as an exercise their First Amendment rights. While the First Amednement does protect free speech, that right does not extend to private employers. Thus if an employee works for a private company, the employee may be disciplined for their social media activity, and that discipline is not a violation of their First Amendment rights, unless the post is protected by other laws like the National Labor Relations Act.
So, what can I talk about online?
Under the National Labor Relations Act (NLRA), employees have the right to join together with co-workers to improve their conditions at work. This includes the virtual togetherness of employees in via social media. It is not just union activity that is protected by federal law, but also “protected concerted activity”. This means that workers have the right to address work-related issues and share information about pay, benefits, and working conditions on social media. These protections seek to ensure that an employee cannot be fired, disciplined, demoted, or penalized by their employer for engaging in these activities. However, in order to be protected, this activity must extend beyond complaining about aspects of work. What is said must seek to initiate, induce, prepare for, relate to, or bring a group complaint to management. For example, the NLRB found that an employee’s Facebook post calling an assistant manager a profanity for disciplining the employee did not qualify as protected concerted activity.
Some states are also expanding protections for an employee’s off duty conduct, which can include social media conduct. California Labor Codes §§1101-1102 prohibits employers from directing or controlling employees’ political activities, and from retaliation against employees for their political expression. These statues allow employees to engage in political activity without interference from their employers. New York Labor Law §201-d similarly protect employees from discrimination based on protected off-duty engagement in political matters. Political matters is broadly defined and includes “the decision to join or support any political party or political, civic, community, fraternal, or labor organization” Colorado Statute §24-34-402.5 is sometimes referred to as the “lifestyle discrimination statue” as it protects a wide range of off duty conduct from personal smoking habits to political expresson.
It is important to remember that in the United States, employment relationships are presumed to be “at-will,”. This means that an employer can terminate an employee at any time for almost any reason, without incurring legal liability. There are exceptions if the motivations behind an employee’s termination are considered to be discriminatory or retaliatory in nature, as employees are protected from this treatment by the Equal Employment Opportunity Commission (EEOC). Unless the employer’s motivation fits into the above mentioned, an employee’s social media presence and online content could be a valid reason for an employer to terminate an at-will employee. Particularly if an employee’s social media presence or content risks company safety or harms other employees, it is within the employer’s rights to terminate that employee.
Social media can be an escape to share one’s ideas and feelings in real time, however there is often a much larger audience than the creator intends. While it is important for people to have outlets to share what they are going through, today’s digital environment means that one’s professional identity is inherently tied to their social media presence. Employees need to be mindful of the content they are putting on the internet because even off the clock posts can raise workplace concerns. There are rules and regulations that protect employees conduct, but they are limited so an inherently cautious approach to social media is best.