experience provided us with
invaluable guidance during times
when we faced critical decisions."
January 23, 2016
Social media has become part of the fabric of our society and our world. Facebook accounts span the generations, and the media regularly reports on celebrity tweets and Instagram posts. A variety of ways for people to connect to friends, acquaintances, strangers, and people you may only get to know through online channels exist. Businesses and employers also use social media to promote their brand, product, reputation, and message. They are looking for employees who enhance, not detract from their public image.
We access these websites through our personal and work phones, computers, and devices— blurring the lines between our private and professional personas. Prospective employers’ research job candidates and employers monitor employees’ use of social media. Posts can come back to haunt a job candidate or employee if the employer disapproves.
It is reasonable to wonder if it’s legal for employers to make employment decisions (or to take negative employment actions like termination) in response to an employee’s or job candidate’s online activity.
If you’re wondering if your social media can legally matter to your employer—the answer is typically it can. This is especially true if the employer/employee relationship is defined as “at will” (meaning that the employer can fire, and the employee can quit for any reason as long as that reason is not discriminatory and the employee or potential employee is not a member of a protected class). If the employer/employee relationship is governed by an employment contract or collective bargaining agreement, then that agreement may contain provisions limiting what actions an employer may take against an employee— or it may also limit the employee’s use of social media even off duty.
This may seem unfair because Americans have a Constitutional right to free speech. However, that protection means that Americans can typically publicly express themselves without fear of imprisonment. It does not mean we can post whatever we want and still stay employed. “At-will” employees can and should expect negative employment consequences for online posts that criticize their employer, damage the employer’s reputation, or expose the employer to liability due to being offensive or inappropriate.
Employees have been fired for posting inappropriate photos, calling in sick then going to do something fun, making fun of clients, criticizing their boss, criticizing their employer, sharing confidential information, or an inflammatory, opinion (even if the opinion is completely unrelated to his employment). There are many examples of employees who learned the hard way that there are consequences for their online activity.
Our private lives are now much more public. In order to make ourselves more likely to get and retain jobs in a competitive market, we need to think carefully about what we post and what others post about us. Social media posts can become a factor in litigation. Employers need to be aware that they can potentially gain access to otherwise protected information from conducting investigations into a job candidate’s social media profile.