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Fired for Social Media at Work?

We represented a California employee through our San Franciscl oaw office who was fired for using social media at work. We were able to successfully represent this employee for privacy rights violations and termination in violation of public policy. Today, let’s look at some of the law that covers this medium. Keep in mind while reading that California protects an employee’s privacy rights through Article One, Section One, of the California Constitution. Social media most used by today’s employees include Twitter, Facebook LinkedIn and Instagram. In many ways,  today’s social media have become the new “watercooler” of corporate, co-worker interaction. Under the National Labor Relations Act, discussion among co workers concerning wages and working conditions is protected from employer interference. Yet, the employer still wants to know what’s going on with the jpeople on the ground floor.

On the one hand, many employers do not want to “shoulder surf” over an employee’s use of the Internet due to concerns about being sued for privacy invasions. They may be concerned about negative postings which could impact recruitment. Other employers are aware of firms like our’s that have successfully sued them for privacy-related issue. So, if you are being investigated or have already been terminated for alleged misuse of social media (using it too much, displaying graphic images, etc), lets review a couple of quick thoughts:

1. Does your employer have a printed policy covering the subject? Read it carefully and determine if the policy prohibits discussing workplace issues on social media (or with other employees in any context). You have an absolute right to discuss workplace conditions, wages, working relationships with other workers, terms of employment, corporation’s culture, union rights and other such issues with co workers.

2. Does the employer’s policy overly broad, ie, does it go beyond what is required to shield the company’s trade secrets and other confidential information?

3. Does the employer’s policy (and it may be written or oral, so be sure to look for all sources of this “policy”, including management updates, bulletin boards and the like) advise that they are monitoring your use of e mail and other social communications? Have you been asked to sign an acknowledgement of this policy? This is usually given out as an Human Resources at-hire document along with statements that neither you nor they will discriminate on the basis of age, sex, race, national origin or the like.

4. Has your employer engaged in any of the following, specific forms of conduct? These issues have already been addressed by the National Labor Relations Board (NLRB)

a. Prohibited you from disparaging the company? If so, the NLRB might find this to bee overly broad and amorphous.  Even disallowing comments like “disrespectful” communications, or “language which injures the image or reputation of the Dealership” might be outlawed. Similarly “negative conversations” about managers might violate the law.

b. Does the company ban you from “friending” co workers? Big no-no. Same with “unprofessional communications”. That’s too broad.

c. Has the employer ordered you to “talk with us first” before posting? That would be considered overly discouraging of allowing employees to talk with each other about workplace conditions.

5.  There are some specific California laws on point (the NLRB examples above are based on NLRB (federal agency) decisions and not California-specific. Here are some guidelines for California workers:

a. Did the employer ask for access to your personal social media via password or other method? Illegal, most likely.

b. Does the employer have a policy of looking over your shoulder (or using video cameras which you may or may not know are turned on)? also most likely illegal.

c. On the other hand, if the employer is conducting an investigation (in good faith) of allegations of employee misconduct including violations of law, then social media may be accessed.

California employees have privacy rights in the workplace. If you are terminated for what you believe is a violation of privacy rights on social media (recalling that anything you open through your company’s server or e mail account has just lost its right to privacy, including attorney client privilege), let us hear from you. We represent California employees in age, sex, race, national origin, disability (both mental and physical) cases and would love to chat with you. Call anytime.