Only YOU can prevent a social media firestorm.
My Facebook page is a snooze. Two members of my immediate family do not want their existence to be acknowledged on the internet. I almost never post anything, except to wish someone a happy birthday. When I “Like” something, it’s a cute baby, or the craft beer that my cousin is drinking on his patio, or a picture of a dogwood blossom that one of my friends took while on her afternoon stroll.
I never “Like” a political post, even if — in the privacy of my own home — I’m shouting, “YEAH! Tell it!”
In short, you would never want to be my “friend” because I’m so boring. But my dullness helps to keep me safe from the social media mob. At least, I hope so. And if my law firm ever decides that it’s time for us to part ways, I doubt that it will be because of anything I did on social media.
But that’s just me. You are more interesting than I am. And interesting people are being harassed, threatened, and fired from their jobs because of their social media postings. So, as a public service, I am providing these tips for employees and employers about social media.
The first rule is one from which all the others flow: Unless you work for the government, the First Amendment does not protect your right to post your every opinion on social media. In the context of social media, the First Amendment protects you only from having the police come to your home and throw you in jail for expressing your opinions. It doesn’t protect you from other consequences of what you say — like ticking off your friends, or losing your job.
If you like to post about politics, watch out. Especially nowadays. Anything you say about politics (no matter what you say) will cause 50 percent of your “friends” or followers to become very angry with you. Some people may react so negatively to your views that they may try to ruin your life.
If you’re into sex, or illegal activity, don’t use social media to express yourself. Inquiring minds don’t want to know. Really. We don’t. (The sex postings could be considered sexual harassment if your co-workers see them and are offended. Which brings me to my next point . . .)
If you just have to post about politics, sex, or illegal activity, unfriend all of your co-workers first. Also, make sure you have the most restrictive privacy settings available. Once you have done both of these things, give it a try, but understand that somebody may still manage to find your post, take offense, and report you to Human Resources.
As the above points should have made clear, understand that anything you post on social media can (and probably will) be used against you. If not by your employer, then by the social media mob, which is meaner than the meanest employer.
On the other hand, if you post about adorable babies, what you had for dinner, and your pets (in other words, if you’re as boring as I am), then you are probably safe.
Generally, you have the right to take action against an employee for an inappropriate social media post that offends co-workers or that disparages your business, discloses your confidential and proprietary information, or reflects badly on your company. You can also take action against an employee who posts content that is discriminatory or harassing based on race, sex (including sexual orientation and gender identity), national origin, religion, age, or disability. Or, especially relevant to health care employers and first responders, against an employee who posts information that violates the privacy rights of patients or other private individuals. Or against an employee whose post indicates the employee is involved in illegal activity, or communicates threats.
However, always consult with your labor or employment counsel before you act. If the posts relate to terms and conditions of employment, they may be “protected concerted activity” within the meaning of the National Labor Relations Act, which means that it could be unlawful to take action against the employee. This is true even if your company is non-union. Even a “Like” could be protected concerted activity.
Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.