Social Media: Your Personal Life vs. Your Professional Life

 

This week on IFB, I got chatting with Nancy Sprattlin of Sprattlin Castor LLC, who is an employment lawyer.  I sent Nancy the following question:

 

I had a discussion with some bloggers who works in the non-profit sector.  One mentioned several of her coworkers had been laid off and fired for saying negative things about the company/coworkers on Facebook.  While she's never used her social media tools in that matter (and wouldn't!), she's super concerned about being penalized by her employer for just HAVING a blog/Facebook/Twitter.

 

Is it legal for a boss/company to penalize you for having these? (Even if they have no relation to your job or don't present a conflict of interest?)

If a blogger feels that they've been reprimanded in the job for utilizing social media in their personal life, what can they do about it?


Most states enforce “at will employment” to some degree. New York for example is an employment at will jurisdiction. At will employment means that employees may quit their jobs at any time and for any or no reason at all. By the same token, employers may fire or layoff an employee for any, no, or even unfair reasons.


An employee may prove wrongful termination when an employer fires or lays off the employee for illegal reasons. This might include violation of state laws, discrimination laws, whistleblower laws and many others.

 

At any rate, there are several factors that would need to be assessed in determining whether their termination was unlawful as follows:

 

a) Structure of the companies at issue:

1) is it a private company (including not for profit): They are typically at will termination for any reason.

2) is there a Union Contract (which would protect those employees from wrongful termination reasons – e.g. blogging may be deemed a protected activity), or did they work for the Government (generally more protection, privacy matters – like blogging on personal computer – are protected by the 1st amendment).

 

b) Nature of postings or blogs: what exactly were they posting online? It is illegal to violate public policy when firing a worker — that is, to fire for reasons that society recognizes as illegitimate grounds for termination. Before a wrongful termination claim based on a violation of public policy will be allowed, most courts require that there be some specific law setting out the policy. Some states protect whistle-blowers who complain that their employer broke any law, regulation, or ordinance at all. Other states give employees whistle-blower protection only when they report that their employer broke certain laws — like environmental regulations or labor laws. New York has a whistle-blower statute. So depending on the nature of the blog and whether it falls within the purview of that statute, those employees could have a legal cause of action under that statute. They would need to follow up with a plaintiffs’ employment attorney as discussed above. Or for more information about whistle-blowing, visit the National Whistleblowers Center or The U.S. Department of Labor's Office of the Whistleblower Protection Program.

 

c) Whether the Companies at issue had reasonable social media policies which included the right to restrict use of company equipment and spending company time on non-work activities. These policies need to have been communicated to the workforce and consistently enforced.

 

In sum, posting company information or negative comments about a company have been grounds for firing in the past, with companies construing the posts as violations of company policy. However, social media laws are evolving quite rapidly based on the factors discussed above. I would strongly recommend that those bloggers who were terminated to meet with a plaintiffs’ employment attorney and discuss their individual situations if they believe their termination was unlawful.

 

As for the blogger who is concerned, unfortunately employers are not required to provide a reason or explanation when terminating an at-will employee. If she has an employment contract with her employer or is covered by a collective bargaining agreement, she has more rights, but the company still has the right to fire her for cause and violation of reasonable company policy is cause. Otherwise, she can be terminated for a reason or for no reason at all. But a company policy that prohibits an employee from having a facebook page may be too broad and could be challenged as unreasonable.

 

Disclaimer: Nancy Sprattlin is not giving me, nor you, the members of the IFB community, legal advice. In order for you to determine whether you have viable causes of action under federal, New York or any other state laws, you really need to speak with a plaintiff’s employment lawyer in your jurisdictions with all the details of your respective situation.

 

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15 Responses

  1. WendyB

    I tell people to imagine themselves having a business. Would they want to pay someone who was embarrassing them in public? I’m not talking whistle-blowing, I’m talking random bitching. Deal with your work problems at work …

    Reply
    • Ashe

      I don’t disagree– but what if someone is just threatened= JUST because you’re on social media sites in the first place? Not because you’re talking about them, but for holding an account? That’s a possibility, that you could be fired just for being on Facebook, Twitter, or having a blog, and you should know what your rights are in that regard.

      Reply
    • Jennine Jacob

      I agree, especially now since being an employer… It’s hard enough coming up with enough money to pay yourself and the people who are helping you… if they’re doing things that undermine your business, it makes it so much more difficult, as a team and professionally.

      Employers should have the right to let unhappy employees go find a more suitable place…
      🙂

      Reply
  2. MJ

    Great post! I think people need to truly realize that there is no such thing as “privacy” or “The Delete Button” when it comes to what you post online. Social Media is great for sharing things but you as an individual need to be mindful of what you share. I don’t even put what I do as a day job on my blog, Twitter, etc. All you know is that I have a 9 to 5 job. I don’t even want to set myself up to be a situation where my job things I may be saying something about that company good or bad!

    And I agree with Wendy – keep your grievances offline.

    Reply
    • Ashe

      I do think people need to be aware of what they’re saying (or that there is NO privacy online). But there are people who are concerned about losing their jobs for having an online presence at all, and should know what to do if there becomes a conflict between work & play!

      Reply
      • MJ

        I totally get what you’re saying. I live in an At Will state so people can get fired for any and everything (except the usual race, religion, age, etc.) Just for having an online presence definitely shouldn’t be grounds for being fired but I wouldn’t be surprised if it happens. We definitely should know what to do and enough of us fight for it Employers will wise up!

  3. lisa

    Agree with what WendyB and MJ have said. Whatever you post on Facebook/Twitter/your blog/Pinterest/etc, you should assume that privacy settings don’t exist and that everyone can see it. The litmus test is, will you be ashamed of letting your employers, parents or grandparents see it? If the answer is yes, maybe you shouldn’t be posting it in the first place.

    Reply
    • Ashe

      I don’t disagree– but beyond that– what if you aren’t talking about your employer? What if they’re threatening you JUST because you’re on social media sites in the first place? That’s a possibility, that you could be fired just for being on Facebook, Twitter, or having a blog, and you should know what your rights are in that regard.

      Reply
  4. Dignity Zine

    Companies are consistently moving towards the creation of social media policies. Check with your employer and follow the guidelines. They may specify what you can and cannot post online, especially if you identify yourself as an employee.

    Reply
  5. Ondo Lady

    I would think very carefully before posting anything negative about your workplace or employer on any Social Media platform. Not only is it defamatory it is downright unprofessional. I make it a point never to say anything online that I cannot account for and I never mention my employers or clients on Social Media in any capacity.

    As for being penalised by your employer – potential or current for being on Social Media; that is ridiculous in this age as a lot of bosses have profiles on Facebook or Twitter anyway. If a company has policies regarding their employees’ behaviour on Social Media then they need to have something in writing and make it clear from the on set what their expectations are and what they find unacceptable. It is grossly unfair for employers to come back to an employee after the fact to tell them that it is a violation for them to mention the company on Facebook even if it is in a positive light. We need transparency here.

    I watched an episode of Kell on Earth with PR maverick, Kelly Cultrone where a potential employee had a job offer withdrawn because she had mentioned on Twitter that she was going for a job interview for Kelly’s firm. This is unfair, I appreciate why they would not want their business on Twitter but it should have been communicated to the candidate when she was asked to come in for an interview. Like I said transparency from the outset is needed. The thing is that Social Media is still new so I think we are all muddling through but in the future I am sure companies will become more clearer about their policies on Social Media.

    Reply
  6. Angeline

    Interesting thoughts and info. You should most definitely keep in mind your company’s culture and take cues from higher ups (although be aware if they have contract status if you’re at will, for example).

    But don’t be lax on your public postings just because a higher-up is as well. The last company I worked for was very social-media friendly. Our CEO was usually the first to friend you on Facebook, and my boss was (and still is as a friend) super-supportive of my blogging. But not everyone looked on our CEO’s public persona as positive, since he sometimes posted enigmatic statuses that seemed to allude to business dealings, and eventually he was driven to keep his profile more private (he has since left the company). While it is useful to look to management for cues, you should also keep in mind that they don’t always know what they’re doing either.

    Reply
  7. theComplex

    Great read. Angeline makes a great point about finding what’s best for you.

    As someone who goes under several online identities, I envy people who use their one name or one branding for everything. At the same time, I hope that I can refrain from the repercussions of being ALL of myself to those who do not need to have contact with everything about me.

    This means multiple Twitter accounts, Facebook lists that separate friends from co-workers, from family, etc., and any other duplicate accounts. It may seem complicated but after years of application, I feel that it’s been beneficial. I can be professional here, personal there — knowing that in any case, it’s all very “public” but not so easy to connect.

    Reply
  8. Cindy Swisher

    I see NOTHING wrong with exposing the truth. Furthermore, “venting” to friends can be healthy.

    Reply
  9. Cindy Swisher

    What happened to “social” in social media? I think these employers are simply overstepping their territory into personal space. I do not believe in mixing “professional” and social media.

    Reply