In short, yes. Although certain actions on social media are protected and there are cases where being fired for social media activity is an act of discrimination and therefore, illegal, the truth is that you certainly can be fired for your social media posts. You can also be fired for spending time on social media at work – when you are on the clock, you must be working. It is legal for an employer to terminate an employee who uses social media during work hours.
Social media-related termination cases are not all the same. If you were fired because of your social media activity, you could have grounds for a wrongful termination or retaliation claim.
In New Jersey, you Have Social Media Privacy Rights
In 2013, NJ Assembly Bill 2878 was passed and signed into law. This law prohibits employers from requiring their employees to disclose their social media usernames and passwords. It also prohibits employers from requiring employees to provide them with access to their social media accounts through any other means.
Know Which Actions are Concerted Activities
The National Labor Relations Board (NLRB) defines concerted activities as actions employees may take to improve their working conditions without fear of facing retaliation from their employers. These include, but are not limited to:
- Establishing and joining labor unions;
- Discussing cases of alleged discrimination in the workplace;
- Petitioning for better workplace conditions;
- Discussing issues related to wages and hours with colleagues; and
- Working with colleagues to act as whistleblowers to upper management, a government agency, or the media.
When concerted activities occur over social media or otherwise involve such platforms, they are protected in the same way that they are protected otherwise. Employees who face disciplinary action for engaging in concerted activities have the right to file retaliation claims.
You Can be Fired for Malicious Social Media Posts
Concerted activities are only protected when they are made by a group of employees or by an individual acting on behalf of a group. They also must address workplace conditions in a constructive manner. Making posts that are offensive or malicious in any way is not a protected activity. For example, making posts that defame an individual at your company or make allegations with no basis in fact are not protected by the NLRB.
You can also be fired for offensive posts that have nothing to do with your job. Racist, sexist, homophobic, violent, and otherwise inappropriate material can reflect badly on your company, prompting your employer to terminate your employment within his or her right to do so.
Work with an Experienced New Jersey Employment Lawyer
If you have been terminated for your activity on social media, there is the possibility that you suffered a wrongful termination and that you are entitled to recover monetary compensation for your related damages through a wrongful termination claim. To learn more, schedule your initial consultation with our team of employment lawyers at The Sattiraju & Tharney, LLP We are one of the premier employment law firms in New Jersey and New York with extensive experience securing millions of dollars in compensation for our clients.