Social media can help you stay connected with friends and family, get and pass on news, and share your thoughts about the issues and problems in the world today. While many people believe that what they do outside of work is their own business, in today’s hyper-connected world, what you post on your social media profiles could have serious consequences at your workplace. You could be disciplined or even fired for the content of your posts, or they may be a form of protected speech. How do you know what’s protected and what’s not?
Employment at Will: Minimal Protection
New Jersey is an “employment at will” state, which means that employees are free to quit their jobs at any time, without any notice, and private employers are free to terminate workers without notice, cause, warning, or severance. This means that you can generally be terminated for whatever you post on social media, whether you spend your time online crusading for social issues or just re-sharing innocuous content. If your boss is more of a dog person, New Jersey law doesn’t protect you from being terminated for posting cat videos.
Employers also have a responsibility to ensure that political speech in the workplace does not create a hostile or discriminatory work environment for employees or otherwise potentially run afoul of equal employment opportunity or civil rights laws. Conversations or interactions on a social media platform with coworkers (especially subordinates) about immigration, racial profiling, police violence, protest movements, or terrorism may create grounds to support a claim of discrimination or harassment based on race, national origin, religion, or ancestry. Expressing views on religion, abortion, parental or disability leave laws, or healthcare rights could potentially be deemed harassing or discriminatory to employees based on gender, disability, or religion.
Generally Protected Speech: Content Specifically Related to Working Conditions
Private employers may not restrict employees’ rights to discuss their “terms and conditions of employment” under the National Labor Relations Act (NLRA), such as wages, hours, and working conditions. The law protects the rights of employees to discuss, organize, and take action to address conditions at work. This protection extends to certain work-related conversations conducted on social media, such as Facebook and Twitter. However, this exception is relatively narrow; mere “gripes” or complaints do not merit its protection without some relationship to “concerted activity” among workers. Complaining about your boss, mocking or harassing other employees, or engaging in arguments with co-workers on the internet would probably not be protected speech.
Because employers have a legitimate and lawful interest in ensuring that employees are productive and that social media discussions or activities do not cause or threaten harm in the workplace, create a hostile work environment, or impede the normal operation of an employer’s business, they often implement policies and rules restricting social media use. These are allowed insofar as they do not run afoul of the NLRA and are neutral to all viewpoints. Employer policies, however, are frequently overbroad and, as written, can prohibit some protected speech. If you feel you’ve been terminated or disciplined as a result of an overbroad social media policy, contact an employment attorney.
Is Content Related to Political Beliefs Protected?
The First Amendment protects public employees, like police officers, school employees, or other government workers, from being terminated or because of their political views or activities, whether those beliefs are expressed at work or on social media. However, the First Amendment grants no such protection to employees of private companies, who have no federal protection from termination or discipline for political speech.
Some states, including New York, have passed laws specifically prohibiting discrimination based on political affiliation and political activity outside of the workplace. New Jersey, however, is not one of them. Use caution when sharing your political opinions in the workplace, and be cautious about what you post on your social media if you are connected online to your coworkers or supervisors.
Privacy Rights for Social Media
New Jersey passed NJ Assembly Bill 2878 in 2013. This law protects employees’ social media privacy. Employers may not require that employees disclose their social media usernames and passwords or provide them with access to their social media accounts through any other means. An employer who does so may be subject to a civil suit for injunctive relief, compensatory and consequential damages incurred as a result of the violation, and reasonable attorneys' fees and court costs.
If you believe you have been the victim of an improper adverse employment action based on social media activity, you should consult with an experienced employment attorney. The attorneys at the Mark Law Firm can help evaluate your case, protect your rights, and recover damages if appropriate. Contact us today to make an appointment at any of our convenient New Jersey locations.