In the current digital era, where social media channels provide a main avenue for personal expression, employees might question how their online actions could affect their careers. While individuals typically experience a sense of liberty when sharing on platforms such as Twitter, Facebook, or LinkedIn, it is crucial to recognize that their online conduct can result in serious outcomes, including possible job loss. Legal and employment professionals highlight the necessity of being aware of company policies and the protections—or their absence—that apply to workers.
The matter has gained attention after a Tesla manager was recently dismissed for using LinkedIn to criticize Elon Musk, Tesla’s CEO. Reports indicate that the manager’s remarks resulted in their firing, underscoring the delicate balance employees navigate when expressing views about their employers online. Although certain laws offer protection to workers in particular situations, these protections are limited, allowing employers substantial discretion in making termination decisions.
Jeffrey Hirsch, a labor and employment law professor at the University of North Carolina, outlines the basic structure. “An employer has the right to dismiss an employee for almost any reason, such as social media critiques, unless certain protections are in place,” he explains. This wide-ranging power highlights the need to be aware of personal rights and to comprehend company guidelines before sharing content that might be seen as critical or unsuitable.
Protected versus Unprotected
The potential repercussions an employee may encounter due to their social media activity are influenced by various elements, such as their employment agreement and the content of their post. In the United States, most employees work under “at-will” contracts. This allows either the employer or the employee to end the employment relationship at any moment for almost any reason, provided it does not breach anti-discrimination laws or other legal protections. Montana stands out as the sole state mandating that employers must have a valid reason for dismissing an employee, presenting a distinct exception to the at-will employment concept.
Whether an employee can face consequences for their social media activity depends on several factors, including the terms of their employment and the nature of their post. In the United States, the majority of workers are employed under “at-will” contracts. This means either the employer or the employee can terminate the working relationship at any time for virtually any reason, as long as it doesn’t violate anti-discrimination laws or other legal protections. Montana is the only state that requires employers to have just cause for firing an employee, offering a unique exception to the at-will employment model.
For employees elsewhere, certain types of speech are protected under laws like the National Labor Relations Act (NLRA). This federal legislation safeguards employees’ rights to engage in “concerted activities,” which include discussions about workplace conditions, wages, or employment policies. Catherine Fisk, an employment law professor at the University of California, Berkeley, notes that this protection can extend to social media posts, particularly if the worker is speaking on behalf of coworkers or addressing shared issues.
Public sector employees, including teachers, police officers, or government staff, enjoy extra protections under the First Amendment. These protections are in place when their speech pertains to issues of public interest and does not interfere with workplace functions. Nevertheless, this protection is not all-encompassing, and employees must still be careful about their online postings.
Public sector employees, such as teachers, police officers, or government workers, benefit from additional protections under the First Amendment. These safeguards apply when their speech involves matters of public concern and does not disrupt workplace operations. However, this protection is not absolute, and workers still need to exercise caution when posting online.
Employer policies and boundaries
“The National Labor Relations Board has determined that such policies are overly restrictive as they might discourage employees from exercising their rights,” Kluger explains. Nonetheless, companies are permitted to implement policies that prohibit the spread of false information, trade secrets, or defamatory comments.
Kluger also mentions that companies frequently suggest employees consider how their online posts might affect the company’s image. For instance, employees are generally advised against criticizing competitors or expressing opinions that could negatively impact the organization they work for. Certain policies also mandate employees to specify that their opinions are individual and do not reflect the company’s perspective.
Though these guidelines are designed to safeguard the company’s reputation, they also remind employees of the possible repercussions of their online actions. “Social media posts can have a lasting impact, so it’s crucial for employees to carefully consider their words before clicking ‘post,’” Kluger advises.
While these guidelines aim to protect the company’s image, they also serve as a reminder to employees about the potential consequences of their online activity. “Social media posts can leave a lasting impression, and it’s important for workers to think carefully about their words before hitting ‘post,’” Kluger advises.
What to do if you’re fired over a social media post
“The unfortunate truth is that numerous employees are uninformed about their rights, and even fewer understand how to navigate the complaint filing process,” Hirsch states. For those who decide to move forward, the process may be time-consuming, but a favorable outcome could result in reinstatement and back pay.
Not all situations are straightforward. Although the NLRB typically supports employees in obvious retaliation cases, intricate or borderline scenarios might be swayed by the political inclinations of the board members. This can lead to differing interpretations of what qualifies as protected activity.
Understanding Ambiguous Zones
Navigating the gray areas
“When societal matters dominate public discussions, there is an increase in instances where employees share opinions that might conflict with their employers’ values or rules,” Kluger explains. “This creates a situation that presents difficulties for both workers and companies.”
“Whenever societal issues dominate the public discourse, we see more cases of employees posting opinions that may be at odds with their employers’ values or policies,” Kluger explains. “It’s a dynamic that puts both workers and businesses in challenging positions.”
Finding equilibrium
For employees maneuvering through this intricate environment, the crucial aspect is understanding their rights and assessing the potential risks of their online behavior. Reviewing company policies and ensuring social media posts are in line with legal protections is vital. Additionally, workers should refrain from posting false or provocative content that could be detrimental to them.
In the end, the connection between social media and employment is changing, and both employees and companies must evolve accordingly. Employers have to find a balance between safeguarding their brand and honoring employees’ rights, while workers should be careful and considerate in their online engagements.
Kluger explains, “Social media has empowered everyone with a voice, yet with that voice comes accountability. Employees should keep in mind that their words can impact not only themselves but also their employers.”
As Kluger puts it, “Social media has given everyone a voice, but with that voice comes responsibility. Employees should remember that their words can have consequences, not just for themselves but for their employers as well.”
In an era where personal and professional lives are increasingly intertwined, the importance of navigating this digital terrain with care cannot be overstated. Whether through clearer policies, better education on workers’ rights, or open communication, finding common ground will be essential for fostering mutual understanding in the workplace.
