Many businesses such as professional offices, restaurants, retail stores, and hotels use social media to promote their products and services. Many employees have their own Facebook. LinkedIn, Twitter, and Instagram accounts. Employees should understand that employers may review their social medical accounts before hiring an applicant and while the worker is employed.
Employers will argue they have legitimate reasons for reviewing social media accounts to determine a worker’s qualifications. Employees have a natural concern that employers are just reviewing personal accounts to see if the worker is saying anything negative or derogatory about the employer.
Employees and potential employees have the right to be concerned that the employer may be improperly reviewing the employee’s account to analyze certain discriminatory factor such as the worker’s sex, sexual orientation, race, national origin, whether the worker is pregnant and whether the worker has a disability.
Generally, the Equal Employment Opportunity Council’s position is that use of personal information on a social media account to discriminate against an employee is illegal.
Employers may be liable for creating a hostile work environment if they allow co-workers to post negative comments or negative information about a worker – or if the employer learns of the negative social media post and fails to take steps to have the information removed.
Some of the questions experienced California employee rights lawyers review are:
- Were the posts made during work hours or after-hours? Generally, employers have a stronger claim to review social media posts while an employee is supposed to be working for their employer.
- Did the posts relate to workplace conditions? Generally, workers do have the right to speak truthfully about workplace issues such as unsafe conditions, harassment by employers or coworkers, pay disparity, supporting the rights of other workers, and other workplace issues.
- Is the employer a private company or a public entity? Frist Amendment rights generally do apply to public employers but not to private employers.
- Is the employer action such as a firing due to social media posts? – or is the employer using the social media post to hide the real reason – that the employer is firing the employee for illegal reasons. Illegal reasons include firing someone based on his/her race, age, gender, or other identity characteristics.
- Is there an employee conduct handbook? If so, what does the handbook say about social media posts?
Employees should understand that if they file a legal claim against an employer for sexual harassment, creating a hostile workplace, discrimination, or the assertion of any employee right – that the employer’s lawyer may seek to review all social media accounts of the employee. The posts may be used to question the credibility of the employee.
The more offensive the post is, the more likely the employer will have the right to take disciplinary action on the grounds that the offensive comments reflect on the company.
Any employee who was fired or discipline due to their social media posts, needs the help of experienced employee rights lawyers. At the California Law Offices of Stephen A. Danz and Associates, we assert all your employee rights under federal and California law. To learn if your employer’s use of social media posts violates your employee rights, call us at 877-789-9707 or fill out our online contact form to make an appointment. Se habla espanol.