Social media is a crucial part of most people’s daily lives. While Facebook, Instagram, TikTok, and other platforms are often used to keep in touch with family and friends, many people also use them to vent, share opinions, or discuss things that have happened in the workplace. Importantly, employees should proceed with caution when posting on social media and be aware of the laws that are in place to protect them from adverse employment actions when it comes to using these platforms.
Employees often wonder if they can be terminated for things they have posted on social media. Generally, the answer is “yes.” But there are several exceptions that apply to safeguard an employee from being wrongfully terminated.
Ohio is an at-will employment state. This means an employee can be terminated at any time and for any reason — including for social media activity in certain instances. However, it’s essential to understand that there are still federal and state statutes that may protect employees from being fired for social media posts, depending on the circumstances.
Many employees believe they are protected by the Constitution when it comes to what they can say in the workplace. But it’s important to understand that the First Amendment is only applicable when it comes to the government restrictions on speech. This means that an employer in the private sector can impose whatever rules they want when it comes to restricting or regulating speech. This can result in overly restrictive rules that limit what an employee can — and can’t — say on social media.
Regardless of the restrictions that employers may impose, the National Labor Relations Act protects an employee from termination or retaliation if they post truthful information on social media about certain workplace conditions. An employee cannot be fired for social media posts involving the following:
Employers are also prohibited from using social media posts as justification for termination based on an employee’s membership in a protected class under Title VII of the Civil Rights Act and Ohio law. For instance, an employee cannot be fired for social media posts of themselves engaging in religious observation, participating in a cultural event, or engaging in other activity that is protected.
If an employee has been wrongfully terminated due to protected activity on social media, they may be entitled to bring a claim against the employer for wrongful termination.
There are a number of reasons an employee may be legally fired for social media posts. For example, if they spent too much time on social media during work hours and neglected their job duties, an employer may have legitimate cause for termination. An employer may also terminate an employee for posting photos of themselves that do not portray the company in a positive light. In addition, Employers are legally allowed to restrict speech in the workplace that isn’t protected by the National Labor Relations Act.
An employee may be fired for social media posts that involve the following:
An employee is not legally protected if they post information about their employer that is false or misleading. In addition, if an employee has signed a confidentiality agreement or the employer has trade secrets, discussing them on social media can be grounds for termination. An employee may also be fired for sharing a client list or violating a company policy in some way. Significantly, an employer can look at any social media content that has been posted — whether it has been marked private or was generated on the employee’s own device.
Many companies have policies in place that include guidelines for social media use — and to protect the company’s reputation. These policies can cover how employees should represent the company online, what type of conduct is prohibited, and the disciplinary actions that may be taken for violating the policy. They can also clarify what constitutes a trade secret, and specify that hate speech, bullying, retaliation, and other discriminatory conduct may be cause for termination. Additionally, a social media policy may include an anti-retaliation policy where the employer promises not to terminate or discipline an employee for posting online about workplace harassment or discrimination.
A workplace social media policy should not prohibit employees from having general discussions about work, their jobs, or company decisions. It also should not restrict an employee from using social media to contact the press about concerns related to the workplace. However, it can specify that employees must indicate that they are not speaking as a company representative. It’s important to review an employer’s social media policy before posting anything that could be construed as controversial or in violation of the company’s guidelines.
If you have been fired for social media posts, we encourage you to contact us for a free consultation to learn about your legal options. From our office in Westlake, we proudly serve workers throughout Ohio. The employment law attorneys of Lalak LLC fight for the rights of workers who have been unlawfully discharged by their employers.
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