The Dangers of “Liking”: The Perils of Social Media for Today’s Worker

A report published yesterday in the Wall Street Journal highlights the problems that many employees may face due to their interaction with social media, such as Facebook, MySpace, Youtube or Twitter. According to the report, there has been a marked increase in the past year of cases involving employees fired for “liking” certain pages on Facebook, or making comments on Twitter or Youtube criticizing their co-workers, supervisors or company. Some employees have been fired for demonstrating support for certain political causes through comments or “likes”; others for “liking” a competitor’s page, or for writing comments complaining about work conditions or conflicts with co-workers on Twitter or Youtube.
For workers who have been reprimanded or fired due to their interaction with social media, there is often confusion about whether they face any legal protections for their speech. Many workers in fact may not even realize that their off-duty conduct can expose them to adverse employment action. The default rule for any employment relationship in the United States is that employment is at-will. That means that a worker can be fired for any reason for any time, unless the employer and employee have contracted otherwise. Therefore, unless an employer violates another specific constitutional or statutory restriction, there is little protection for employee speech whether on or off the job.
The First Amendment does protect some speech of federal, state or local government workers, but these protections do not extend to the vast majority of Americans who work in the private sector. For private sector employees, state constitutional law and statutes may provide some protection for their speech however. For example, California is among three other states that completely protect employees from adverse workplace action for their lawful off-duty conduct. This means that workers in California who “like” a certain Facebook page or even criticize their co-workers or employers outside of work are protected. But if such speech or conduct rises to the level of defamation or harassment or violates some other law it will not be protected. The speech must also take place outside of work hours and off work premises and should not use employer technology such as work-provided phones, computers or other equipment.
In addition to protection under California state law for their off-duty conduct, California workers who face discipline, harassment or termination due to their use of social media in the workplace may also be protected under the labor and antidiscrimination laws. As for labor laws, workers who complain about work conditions or supervisor conduct with their co-workers may be protected under the provisions of the National Labor Relations Act that protects organizing activity. This would extend to complaints broadcast on Facebook, Twitter or any other social media as long as it is communicated to a fellow co-worker and can be considered reasonably related to issues that might lead to future organizing activity. Workers who complain about unlawful discrimination in the workplace during work hours or otherwise may also be protected by the anti-retaliation provisions of Title VII of the Civil Rights Act of 1964 and related statutes.
The interrelationship between the protections for employee speech under the First Amendment, state statutes and federal mandates is certainly complex, and the continuing popularity of social media has made such issues even more pressing. Determining the extent of these various protections can be a tricky matter, but employees must take the time to inform themselves of their rights as our society and workplaces become more and more technologically integrated.

In the Media