As with all employment questions, the answer comes down to “it depends.” A number of factors guide whether an employee can lose their job for sharing social media posts or any online activity. Pennsylvania employees usually are in an at-will employment relationship, meaning that either employer or employee can walk away at any time. Therefore, you can lose your job for sharing social media posts.
Can I Lose my Job for Sharing Social Media Posts?
Of course, there are exceptions. The government provides employee rights that can save your job and give you an argument for wrongful termination if you are fired for certain types of social media posts. Only a sliver of situations fit this scenario. An employment attorney recognizes whether or not your circumstances have protections under the law.
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Examples of How to Lose Your Job for Social Media Posts
Losing your job for social media posts is far too easy. In today’s world, employers check out potential hires by doing a social media search first, and they keep tabs on their employees throughout the employment relationship, too. Moreover, employees of private employers don’t receive the same First Amendment protections as Federal employees.
At this rate, it can seem far easier to lose your job than to keep it. And that just might be the case. A quick internet search reveals crazy stories of all sorts of social media faux pas that have ended in job termination.
Olive shared a social media post about her views on the president, and her boss, who has different political beliefs, saw it. A few days later, her manager cut her hours. When she asked her manager why, he cleared his throat and said, “The boss wants political unity in the workplace.”
William posted a couple of complaints about his job on social media. Although his account was private, he did have one coworker following. William found out that his coworker had printed out the post and shown it to William’s boss. William lost his job that same week.
But you don’t have to search far for real-life examples of people who were fired due to what they posted online. While grandma’s mantra of “if you have nothing nice to say, then don’t say anything” still rings true, employees have certain legal options available to them when they’ve already posted their opinions online. If you’re fired for posting something on social media, speak with an employment lawyer to find out if you have any legal solutions.
Is There a Law Protecting Employees from Being Fired for Social Media Posts?
We all want to know the answer to that question, especially as posting to social media becomes second nature. Laws protecting employees from termination due to social media posting are fairly nonexistent, but an employee has a few options: follow your company’s social media policy, check your state laws, and research labor law rulings by the National Labor Relations Board (NLRB).
The Social Media Policy
Forward-thinking employers institute a social media policy for their workplace, ensuring that employees as well as managers are aware of how social media will be handled. Consequences of violating the policy’s rules should be clear, and everyone within the company should be held to the same standards. The policy should be based off the allowances and rulings created by the NLRA.
No-No’s for Social Media Posting
Complaining about a coworker or employer
Sounding off about a supervisor doing his or her job
Sharing a mean rumor about a coworker where other workers will see it
Mocking your employer’s clients for any reason
Posting photos from an embarrassing incident from work
Pennsylvania State Law on Social Media in Employment
Employment laws to protect employees from unfair termination due to social media posts don’t really exist in Pennsylvania. In 2012, the Pennsylvania General Assembly considered passing a short piece of legislature called The Social Media Privacy Protection Act, which protects current and future employees from having to disclose usernames and passwords of personal accounts to an employer. Employers are still permitted to monitor their employee’s workplace internet usage as well as their work email account. Although this law has not been passed, Pennsylvania’s Employee Privacy Laws offer employees some protection from having their privacy intruded upon.
Employees should remember that anything posted onto a public account is no longer private. However, anything that cannot be accessed publicly would be considered private. The Stored Communications Act also protects employees from employers who might want to access archived electronic communications without permission.
Expectations from Pennsylvania Law for Employees
Reasonable expectation for personal privacy in the workplace
No unauthorized viewing of private social media pages
Employers can monitor workplace internet usage and social media networking
Social Media Protections from the National Labor Relations Board
The NLRB prohibits employers from disciplining or terminating employees who share certain job-related posts on social media. In 1935, the National Labor Relations Act (NLRA) enacted to allow employees to work together to address work conditions. Although enacted before social media was a part of life, the NLRB interpret this act to include social media. So employees may not claim the first amendment for complaining about work conditions, but they can claim NLRA and the right to “protected concerted activity,” which means employees have the right to discuss their working conditions with one another. This applies to private employees as well as unionized employees.
Employees who use social media to interact with coworkers to discuss work conditions with the goal of improving them are protected by the NLRB. This activity is protected especially when it is more than one employee speaking up concerns about pay, conditions, or treatment. However, one employee sounding off about a performance review does not fall into the category of concerted activity.
Protections under NLRB
Discussing work conditions with coworkers on social media
Applies to all employees not just unionized employees
Malicious or gossip complaints do not receive protections
Finding real life examples of situations where the NLRB has ruled in the favor of employees is not impossible at all. In fact, you will likely find quite a few. Of course, the NLRB does recognize when employees are complaining only to complain.
Corban grew frustrated with certain treatment in his workplace so he took to Facebook during the weekend to poll his coworkers for ideas on how to the treatment could be improved. A few responded with colorful language, but others had some valid points. On Monday, his boss fired Corban for posting on his private Facebook page about the company. In this situation, the NLRB would likely rule that Corban was interacting in protected concerted activity.
Shannon’s boss called her stupid in front of a client. Minutes later, she posted online, calling her boss all sorts of vulgar names in a status. No one commented or liked the post. A coworker showed Shannon’s boss the post, and the boss fired Shannon. The NLRB would likely rule that Shannon is not protected because she was airing her private grievance rather than looking for a constructive improvement.
Consult a Lawyer
Every situation is different when it comes to protected concerted activity. The NLRB will have to analyze the circumstances before making a decision. However, a good rule of thumb is that the more public and improvement-focused an online post is, it is probably protected. Whereas a personal post is less likely to be protected.
An employment lawyer can be your first step to pursuing your rights under the law. If you aren’t sure if your situation would receive a favorable ruling from the NLRB, run your situation by a lawyer.
Chat with an employment attorney: (412) 626-5626 or lawyer@lawkm.com.
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