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Individuals find themselves in hot water all the time over what they post on social media. For some, their posts go so far as to get them arrested; for others, their social media posts merely get them fired. For instance, there was the “Bad Teacher” who tweeted about being “Naked. Wet. [And] Stoned.” While she did not do anything illegal per se, the school board choose to let her go as she was not living up to the standards expected of teachers in her school district (or any district, for that matter). Then there was the PR executive who got on a flight to Africa, but before she did, tweeted, “Going to Africa. Hope I don’t get AIDS. Just kidding. I’m white!” She was fired for inappropriate public commentary.

On a less outlandish note, a woman was fired for posting, “I start my new job today but I absolutely hate working at daycares” to Facebook, followed by a series of posts griping about her disdain for being around a lot of children. The daycare center had no choice but to let her go once they (and a bunch of parents) got wind of the social media activity.

Social media is a great place to interact with friends and acquaintances, to gripe and share about your day, and to share funny pictures of cats. It is not, however, a great place to complain about your job, or to post anything job related, for that matter.

No First Amendment Rights

It is important for both employers and employees to understand that while the government does protect our rights to free speech, it does not protect us from saying whatever we please – whether offline or online – without any repercussions. The First Amendment is in place to protect citizens from government retaliation, but not from retaliation by a private company or entity. Just as a parent has every right to ground his or her child for talking back or breaking a house rule, an employer has every right to fire or punish an employee for talking negatively about the company, the position, or even other employees via social media. Furthermore, a private entity is entitled to use discretion when hiring and firing individuals based off of what they see on the Internet.

Protected Rights

Employees do have some protection on social media, however. Whether you are a California employer or employee, it is important to understand what and what is not considered a “fire-able offense” on social media. Some protected social media activities include:

Concerted Activities

While an employer has every right in the world to fire an employee for posting negative comments about the company for which they work or the position for which they were hired on social media, the National Labor Relations Act protects the rights for employees and management to “communicate with each other about their terms and conditions of employment.” So, if an individual were to post a negative comment to another employee or manager, the employer would have no legal grounds on which to fire the employee. Furthermore, if the employer fired the individual despite the National Labor Relation Board’s (NLRB) rule, the employer could get into trouble for retaliation.

Off Duty Conduct

Under CA Labor Code § 96 and 98.6, an employee cannot be discharged or discriminated against for any legal activities – no matter how uncouth – performed during non-working hours and away from their place of employment.

Political Messages

While some states provide no protection for employees against political discrimination in the workplace, California does. According to the California Labor Code, Labor Code §1101, an employer cannot adopt or enforce any rule, regulation, or policy that does either of the following:

  • Prohibits or prevents employees from engaging or participating in politics or from becoming candidates for public office; and
  • Controls or directs, or tends to control or direct, the political activities or affiliation of employees.

While an employer may enact policies that guide employees towards a more amicable conversation for the workplace and to eliminate in-office tensions, they cannot act out against an employee who shares political propaganda or partakes in political banter on social media.

Consult with a Pleasanton Employment Lawyer

At Garcia & Gurney, ALC, our Pleasanton employment lawyers routinely help employers in the Pleasanton, Alameda, and Contra Costa areas form and enact social media policies in the workplace. We also advocate on behalf of both employers and employees who are unsure of what is acceptable social media behavior and what is a fire-able social media offense. If you are currently dealing with a social media issue at work, contact the labor and employment attorneys at Garcia & Gurney, ALC at 925-468-0400 or online today.

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