Last week, People Magazine ran an article titled “20 Tales of Employees Who Were Fired Because of Social Media Posts.” The lead-in provided a list that included the story of a firefighter claiming that his house was on fire then being tagged in a photo of himself sitting in a kiddie pool, and of a potential hire being told that a job was his if he just passed a drug screen and minutes later posting on Facebook a query about whether anybody knew how to fool the test. The stories are an amusement, but bring up the very real question about how social media affects the workplace and whether employee posts on social media are even protected by employment laws. The fact is that some are, and there have been a number of recent cases that have confirmed this.
There is no question that employees are using social media and that employers are taking the time to find them online and see what they are sharing. The question is whether any of what is posted is protected, and if so, what. As it turns out, federal labor laws specifically provide protections for employees who engage in what is known as “concerted activity” to improve their working conditions, their pay, or other problems occurring in the workplace. There are no definitions or limitations restricting these rules to those who are in a union: if employees work together, establishing an online group to complain, organize, or brainstorm about an issue, then their employer is specifically prohibited from firing them for this activity whether they work for a private company or a government agency, whether they are members of a union or not.
So what constitutes “concerted activity”? It simply needs to involve a concern that is shared by more than one employee. Have a group of salespeople complaining online about their commission structure changing or their territories shifted? That is protected. If an employee decides to use their Facebook account or a Yelp review to badmouth a supervisor because they got a bad performance review, that is not protected. They’re only speaking for themselves. If the activity is concerted and the bottom line is that the employees are revealing trade secrets or being malicious, reckless or destructive, then the employees may not be protected.
Your social media posts may also be protected by law if your posts discuss discrimination in the workplace and, in certain cases, they may have the protection of New Jersey’s whistleblower protection statutes. However, the best legal advice that we can provide is that you simply should not discuss your job or workplace on social media. The stories provided in the People magazine article are just the iceberg on horror stories that we have heard over the years. Sticking to happy birthdays and pet photos on social media is the best way to avoid work problems.
If you recently suffered an adverse employment action at work related to social media, contact the employment attorneys at Schorr & Associates in Southern New Jersey at 856.874.9090. We provide a free initial consultation.