Best Employment Attorneys Reply: Can my boss fire me for what I post on social media? How can I protect myself from getting fired for something I said online? Can my boss use Facebook and Instagram posts to fire me?
We’ve all heard those stories. A friend or an acquaintance makes a remark on Facebook that you disagree with, or think is wrong. Maybe, it was Instagram, Twitter, YouTube or Snapchat. Regardless of the form of the social media, that post goes viral and suddenly there is an onslaught of random internet strangers calling for that person to be fired.
I can’t help but think of the video of the teen wearing a Make America Great Again hat standing in front of a Native American chief in a silent but intimidating encounter. Although no one is calling for this high school junior to be fired, I can’t help but think about how easily searchable his name is when he applies to college or to a job. Rightfully so or not, social media and that viral video is going to stay with that young man for a very long time. This video made me think about other cases that I’ve heard of over the years and how social media use and its effects on the work place is becoming more and more common.
Almost every American uses some sort of social media. In 2018, 77% of Americans had a social media profile according to this study. Just think about that- that’s a truly staggering number. Personally, I think that number is only going to increase in the coming years. Employers and employment law attorneys are just beginning to explore this uncharted territory. Our employment lawyers have blogged about social media issues frequently. (See Don’t Post About the Case on Social Media!; Employment Law Attorney Answers: Can I Be Fired For Posting On Facebook?; Employment Lawyer: Don’t Facebook Post About Your Employer; Law: Can Prospective Employers Require My Facebook Password?)
You may remember a story about a Cleveland man was fired from his job for something he “liked” on Facebook. Kozack, a former employee and outreach minister for the Catholic Diocese of Cleveland liked a shared a photo from a same sex marriage ceremony. At the time Kozack didn’t think twice about liking the picture. When he was called into his boss’s office he thought it would be to discuss the recent promotion Kozack had applied for. During the meeting Kozack’s boss asked him about the post. According to Kozack the meeting was very brief. He was shocked the next day when he was received a letter that said he was terminated.
Another story comes from Florida where a man was fired after his boss saw his Facebook posts while he was on FMLA leave. Rodney Jones worked at a nursing facility. In August of 2014 Jones needed surgery on his right shoulder. This required him to apply for Family and Medical Leave Act (“FMLA”) for his surgery and rehabilitation. He was approved, and it was agreed that Jones should be able to return to work in three months. However, the day before his scheduled return, Jones’s doctor said that Jones could not go back to work because he needed more physical therapy. Jones’s company was willing to work with him and allowed him to take more FMLA time off to get the physical therapy he needed. During Jones’s FMLA time off he went on two vacations. While he was on vacation he posted pictures and videos of himself doing very physical activities. Jones was friends with co-workers and his employer found out about the physical activities during his FMLA leave.
Jones was fired for violating the company’s social media policy. The company’s social media policy states: “I understand that Social Media usage that adversely affects job performance of fellow associates, residents, family members, people who work on behalf of [the company]… may result in disciplinary action up to and including termination.” Jones sued the company for retaliation but was ultimately unsuccessful. Our FMLA lawyers previously blogged about another similar situation dealing with Carol Lineberry also getting busted on FMLA leave posting pictures of her family trip. (See Another F’ed Up Case (The F-Word Is Facebook)). The Lineberry situation is a great read because she bitched about not getting a get-well card from co-workers watching her vacation in posts on Facebook and then doubled down after getting busted by lying about using a wheelchair at airports.
What do these stories have in common and what can we learn from them? They both are potential cases that were killed almost as soon as they began. Moreover, every time you Google their names, these stories come up. Hell, we just brought Lineberry’s situation back up years after it happened. While we are using it as a teaching point, it just reaffirms that the internet painfully does not forget.
The story about the Cleveland man liking a post about gay marriage and then getting terminated is horrible. But, in that particular instance it wasn’t illegal because he worked for a religious organization. Basically, courts are reluctant to impose restrictions on religious organizations when it comes to who they can and cannot employ. This example highlights a very complex and controversial issue of whether religious organizations should be able to discriminate just because they are fall within a religious exception.
On the one hand, our employment attorneys understand that certain faiths and religions have very strict traditions and practices that they should be able to follow without fear of a lawsuit. However, the flip side to that are cases like Kozak, who are terminated and there is basically no recourse for him. Maybe it’s time for judges to start drawing distinctions about what type of discrimination from religious organizations we as a society can bear and what we can’t.
However, if Kozak was employed by a private company, this would likely have a very different ending. If he worked for a private company then there would be no religious exemption to contend with, and he could have brought a discrimination suit – now, we would still be in a legal battle over whether LGBTQ rights are protected under Title VII of the Civil Rights Act of 1964. It’s really unfortunate that Kozak lost his job for something so minor but the main take away is, if you work for a religious entity, be careful about what you like and post because they are likely within their rights to fire you if your social media contains something that they as a faith don’t agree with.
The rise of social media has its benefits, but it also has its challenges. This is especially true when it comes to employment law. Social media use is still kind of an undefined part of the law right now. There are no clear-cut boundaries as to when an employer could fire someone based off their social media alone.
That is, unless your employer has instituted a social media use policy. These policies are becoming more and more popular every day and you as an employee should pay extra attention to what that policy says.
The second case I mentioned earlier about the man from Florida, highlights what can happen when you don’t mind your company’s social media policy. I think it wasn’t wise of the Florida man to post pictures of his vacations while he was using his FMLA time, but that’s a separate issue. Here, where he really went wrong is when he friended his colleagues at work and sent them pictures of physical activities that he was doing.
Although we all enjoy our colleagues and may think of them as close friends, it only takes one person to report a violation of company policy to put your job on the line. We should all pause and take a moment to consider the consequences of sending that fun photo to a friend or posting it on social media for all of our friends to see.
We’ve all seen a post on social media that makes us think… “maybe he/she crossed a line with that post.” And at the same time, we hear stories like Kozak’s where he “liked” something that seemed harmless. While we are entitled to our opinion the easiest way protect yourself is to not be “friends” with co-workers online. Sometimes it’s hard to distinguish what may be against company policy and what may not be. It’s always a good idea to use an abundance of caution.
In addition, there are varying privacy level settings on Facebook. If this blog hasn’t been persuasive enough not to be online friends with co-workers and you feel compelled to be “friends” with coworkers, consider creating a separate group on your social media so that you can share your post with everyone except your colleagues.
Of course, this isn’t a full proof way to ensure that your workplace won’t see your posts, but it might help. The issues I just discussed are completely different than scenarios where someone is fired because their boss found out they were gay, or something like that. If you work for a private company, and something like that happened to you, then you should seek legal advice from an employment law attorney.
Our employment lawyers’ main concern going forward is that employers will use social media policies as pre-text for firing someone. In other words, there may be a discriminatory reason that motivates a boss to fire an employee, but the reason they’ll give is something along the lines of “violation of company social media policy.” As always, I will continue to fight for justice in this new and evolving area of law. Everyone deserves a fair chance to succeed at work regardless of race/color, religion, gender/sex, national origin, age, or disability.
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