Please note that the information contained in this post is for informational purposes and is not to be considered legal advice. This blog post does not create or imply an attorney-client relationship. If you would like to discuss your particular circumstances with us, please set up a consultation by contacting the Satter Ruhlen Law Firm at 315-471–0405 or through our website (https://www.satterlaw.com/contact-us/). We look forward to walking you through your workplace rights.
It’s a familiar feeling. You’re on work time. You’ve been at it diligently all morning. You just reached a stopping point and need a break, but you don’t want to step away from the computer. So you hop on to Facebook, and there you see a post that you just have to reply to.
Regardless of whether you’re working from home or in the office (remember the office?) your social media activity is being monitored by your employer. Some employers install software on your work accounts so they can see when you stop working. Others just watch your Twitter account. You know all those coworkers you friended and followed? They’re going to tell the boss what you said. If they don’t, their friends will tell.
So what gets you into trouble?
First, if your employer has a social media policy, follow it. For example, if the employer says “No Social Media During Work Hours,” that means no social media during work hours. Violating the social media policy can and will get you fired. Other policies allow you to use social media, but require you to refrain from discussing an employer or the employer’s products. Some of these policies are legal, and some are not. The problem is, to find out if a policy is legal, you might have to get fired first and then sue. That’s a mighty expensive way to get information. So unless you are working closely with an attorney (either your own or the Union’s) on the specifics of your case, it’s not a good idea to violate the employer’s social media policies.
Second, don’t publish confidential information. You know those cute pictures of your home office that you posted at the beginning of the shutdown? Make sure you didn’t accidentally post a picture of your computer screen or confidential documents. Don’t publish pictures, names, or birthdates of patients or long term care facility residents. Don’t publish client info. Don’t publish financials, customer lists, social security numbers, passwords, code, or research results. Don’t publish the employer’s secret recipe for life-changing chocolate chip cookies if the employer is in the business of selling life-changing chocolate chip cookies. If it’s anything that the employer has any arguable interest in protecting, don’t publish it. You’ll get fired, and you might get sued.[1]
Third, racism and sexism are quick and easy ways to get fired, whether or not they happen on social media. The distinguishing feature of social media is, once you’ve posted it, it’s out there forever. You can delete the post, but any clever 12-year-old can resuscitate it, take a screenshot, and will inevitably share it with the boss. Or the media will get hold of it, and the employer will know the next day. Bottom line: if you want to keep your job, don’t be racist or sexist at all, and that includes social media.
Wait, what about my First Amendment rights?
The First Amendment to the United States Constitution prohibits the government from interfering with your freedom of speech in certain circumstances. It does not prohibit private actors from taking actions against you because of what you said. So if you work for a private or not-for-profit entity, you don’t have first amendment rights in the workplace.
If you work for the government (including a state agency or subdivision), the question gets complicated. Theoretically a public employer can’t retaliate against you for posting about a matter of public concern. But if your post has to do with a matter of personal interest to you as an employee (for instance, because you don’t agree with how you are instructed to perform your job), then the post is not protected, even if it has some connection to a matter of public interest. Moreover, if the post presents a potential conflict of interest or interferes with the public employer’s ability to discharge its official duties, the protection is lost.
The difference between matters of public concern and matters of personal interest has spawned endless litigation, so for practical purposes the only way to know whether what you are posting is protected from a first amendment perspective is to lose your job and then litigate. As above, it’s an awfully expensive way to make a determination.
Isn’t there anything I can talk about online?
Yes. If you are complying with your employer’s social media policies, you’re probably ok posting pictures of your cat, your kids, tasteful funnies, and other non-offensive, non-work related matters. (But please use your common sense and don’t post anything that could endanger you or your loved ones.)
You can also use social media to speak out about terms and conditions of employment if they affect other employees as well as you. That means that you probably won’t get away with complaining because the boss disciplined you for wearing the wrong polo shirt, but if the boss continually shorts your whole shift on overtime payments, you may be able to get away with commenting about that on social media. Don’t use vulgarity or threats when you’re doing it, or you can lose the protection.
New York State Labor Law protects lawful off-duty conduct, including off-duty political activities, among other legal off-duty activities. But there are serious limits to the law. Off-duty political activities are not protected if you’re using the employer’s equipment or accounts. This means if you are working from home on an employer-provided computer, your political activity on that computer is not protected, even if you engage in it after hours. Also, as discussed above, if you work for the government, don’t count on this law to protect your political activities even if you engage in them on your own equipment after your shift is over. Moreover, employers get a big break on New York’s lawful off-duty conduct rule: If they have a good faith belief that they are acting in accordance with law, enforcing a workplace policy, or that the employee’s conduct is illegal, then there is no violation even if they are wrong.
Please remember that just because you’re not supposed to get fired doesn’t mean you won’t get fired. Some employers will terminate you anyway, forcing you to spend a lot of money on a lawsuit to get your job back or to recover your pay. This isn’t any different from what employers could do in the days before social media – it’s just that it can be easier to see what you’re doing because of social media.
Social media is a wonderful tool for keeping us together during the pandemic. Being wise about using this tool when working from home may save your job.
[1] Many employers require employees to sign some kind of confidentiality agreement. You may have signed one when you started to work, or it may have been in a stack of documents you got one day. If you violate a confidentiality agreement, even inadvertently, it can mean enormous legal trouble. Try to keep track of what you’ve signed.
