Taking a break during the day to post or comment on Facebook can provide needed balance – especially in sunny California! Who doesn’t have fun checking out what friends and family are up to and what stories are trending? Many employees also vent on Facebook – about overbearing bosses, bad colleagues, unreasonable customers, or any other topic that might come up. But the reality is that many people are Facebook friends with coworkers, and when a person’s private Facebook posts or comments are copied by text or screenshot, or otherwise made known around the office, it can feel like an invasion of privacy. But can it also result in the employee being fired for posting a comment or post on Facebook?
Being Fired At Will
Obviously, as most employees already know, California is an “at-will” state, meaning, Employers don’t need to give employees a reason why they are being let go. Employees can literally be let go for any reason… as long as it is not an unlawful reason. This means that an employees can be fired for being late, even by just a couple of minutes, because work is slow, for not doing a good job, for not having a good attitude, or for any other reason. In fact, the company doesn’t even need a reason.
Limits on Firing Employees for “Off-Duty” Conduct
Although a company can hire and fire a California employee at will, there are limits to the extent a Company can fire, terminate, demote, or otherwise take action against an employee for behavior taking place “off-duty” that is lawful. For example, a company can’t fire an employee for decisions made in the employee’s personal life that do not affect work and are unrelated to work. That being said, if the employee’s conduct starts causing problems in the workplace, then that will give the employer grounds to terminate the employee.
Protection for “Concerted Activity”
Although there is no such thing as “free speech” at work (free speech applies only to the government’s laws and regulations, not those of private companies), there are protections for employees. The National Labor Relations Board, which governs the relationship between employers, unions, and management, is generally very protective of employees and has repeatedly protected employees’ rights to be heard and speak out online through social media channels when made as “concerted activity.” Concerted activity, by its definition, requires you to be discussing, etc. the issue with another coworker.
Obviously, there are a lot of grey areas when it comes to what a company can and can’t do when investigating an employee’s social media posts or comments on Facebook, Twitter, Instagram, or any other type of social media account. Here’s a quick overview of what the company can do and can’t do:
What Company Cannot Do:
- It is unlawful for a company to ask an employee for the employee’s password to access the employee’s social media account.
- The Company isn’t allowed to hover above the employee to view the employee’s password be typed in.
- The company can’t ban employees from using social media at work or discussing work issues on social media
What Company Can Do:
- Conduct an investigation asking you whether you posted the posts in question
- Ask you whether to confirm the accounts are yours and whether the posts were made by you
- Discipline you for violating company policy
- Tell you to stop using your work computer for job searching
- Discipline you for revealing confidential information online
What You Generally Can Be Fired For:
- Lying to the company during the course of their investigation
- Posts that threaten, intimidate, harass coworkers or supervisors
- Posts that violate company’s policies on discrimination, harassment, or hostility
- Posts that criticize a boss or coworker’s age, race, religion, sex, sexual orientation, skin color, nationality, etc.
- Posting photos or posts showing yourself having fun if you called in sick that day
- Ranting about the company, bosses, or colleagues
- Violating the privacy of company, bosses, or coworkers by posting private information about them publicly
- Slandering or defaming bosses, coworkers, or colleagues
What You Generally Cannot Be Fired For:
- Seeking coworker or colleague opinions about work issues through Facebook
- Having online posts/comment conversations with coworkers about work or job performance online
- Having online posts/comment conversations with coworkers about supervisors’ actions
- Expressing concerns online about the conditions of the workplace
- Having social media posts/conversations with coworkers criticizing management’s actions
- Things that you do on your own time, off-work, as long as those activities are legal
- Political messages or beliefs
- Reporting unsafe working conditions online
- Reporting discrimination or harassment being faced at work
Sometimes, the way a company handles an online post by an employee is indicative of a larger and deeper problem. So, for example, companies sometimes use small things as a way of firing an employee when firing that employee would otherwise be unlawful. If an employee has been sick, given birth, or on medical leave (making that employee protected from being terminated for those reasons), then the Company could latch onto a very small transgression (like a snippy post) and take the position that the post is the reason the employee is being fired, when in reality, it is because the Company has been wanting to fire the employee and is looking for any and every excuse to do so.
If you think you may be subject to wrongful actions by your employer or a wrongful termination, as well as discrimination, harassment, or other illegal conduct, contact AXIS today.
AXIS Legal Counsel is an employment law firm representing clients in numerous kinds of lawsuits and disputes involving some of the nation’s largest employers. Whether it is sexual harassment, other kinds of harassment, discrimination, race discrimination, pregnancy discrimination, medical/disability discrimination, racial harassment, retaliation, hostile work environment, wage/hour, workplace bullying, or other claims, AXIS Legal Counsel is experienced in the field of employment and labor law and focused on providing high-quality legal service. AXIS’s managing attorney, Rabeh M. A. Soofi, is recognized as one of the “Top Women Lawyers in Southern California” by SuperLawyers Rising Stars, and is a Los Angeles Employment Attorney with experience representing numerous employees with a wide variety of employment claims.
For information on retaining AXIS Legal Counsel for any employment matter, contact firstname.lastname@example.org or call (213) 403-0130 for a confidential consultation, or visit our Employee’ Rights Practice Area, or Individual Rights Portal. AXIS is a Los Angeles, California employment law firm serving employees all over Los Angeles and California.
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