The rise of social media and technology has blurred the line between employees’ private and public lives. Many employers use posts made on Facebook, X (formerly Twitter), LinkedIn, Reddit, and other social media sites as grounds for termination.
If you’ve been fired or suffered another adverse employment action for your social media posts, it’s important you understand your legal rights. If your employer engaged in unlawful discrimination by firing you or violated New York’s new social media employment law, you may have a valid legal claim for compensation. Discussing your case with an employment attorney can help you protect your rights and develop a strategy to recover the compensation you deserve.
Employers Frequently Research the Online Activity of Applicants and Employees
It’s become a relatively common practice for employers to investigate the social media posts of job applicants and current employees. A recent survey from CareerBuilder showed that 34 percent of all employers have reprimanded or fired an employee directly because of the employee’s internet activity. Seven out of 10 employers surveys stated they’ve used social networking sites to research potential employees during the hiring process.
Of those employees who conducted social media research, 57 percent indicated they had discovered content that caused them not to hire candidates. Additionally, 48 percent of employers reported regularly looking at their current employee’s social media profiles.
Employers in specific industries, such as IT and manufacturing, were more likely than those in sales industries to research potential job applicants. Employers who rejected a job applicant because of their social media activity were more likely to do so when the applicant made the following types of posts:
- Inappropriate or provocative photos or videos
- Photos or videos of drinking alcohol or using drugs
- Making discriminatory comments related to religion, race, or gender
- Posts linking the candidate to criminal behavior
- Posts indicating the candidate has poor communication skills
- An unprofessional screen name
- Posts sharing confidential information from previous employment
New York Is an At-Will Employment State
Most states, including New York, have “at-will” employment laws. Employers can fire an employee for their social media posts, for any other reason, or for no reason at all. Firing an employee over a tweet or Facebook post may seem legally actionable, but it may not be. Here are a few examples of when an employer could use an employee’s personal internet activity as grounds for termination of employment:
- Releasing the employer’s trade secrets or other confidential information
- Making offensive or rude comments about managers or co-workers online
- Posting sexually explicit photos or videos
- Posts indicating the employee lied to his or her manager about sick time
- Posting about the employer’s leadership
- Posting about another job offer
Employers Cannot Discriminate When Firing an Employee for Social Media Posts
Social media posts cannot be used to terminate an employee or refuse to hire an employee when the adverse employment action is based on an employee’s membership in a protected class. For example, an employer cannot fire an employee because of his or her age, race, pregnancy, gender identity, sexual orientation, national origin, status as a parent, veteran status, or membership in another protected class. For example, an employer cannot terminate employment after seeing a social media post with a photo of the employee engaging in a protected religious activity, such as attending religious services.
Additionally, employers cannot terminate an employee’s employment for social media posts related to whistleblowing. For example, if an employee announces on social media that the employer has engaged in illegal activity, the employer cannot lawfully terminate his or her employment. Similarly, an employer cannot fire an employee for confirming his or her involvement in fighting against unlawful discrimination in the workplace, such as sexual harassment. The employee would be protected by state and federal whistleblowing and anti-retaliation laws.
New York’s New Employee Social Media Protection Law
New York Governor Kathy Hochel recently signed a law prohibiting employers from requesting or requiring an employee or job applicant to give them certain information about their social media accounts. The new law will be effective on March 12, 2024 at which time it will protect certain job applicants and employees from intrusion by employers into their social media accounts. Specifically, the new law states that employers and potential employers cannot request, require, or coerce a job applicant or employee to:
- Disclose any username or password used to access a personal account
- Access the job applicant’s or employee’s personal account in the employer’s presence, or
- Reproduce any video, photographs, or any other information within the applicant’s or employee’s personal account
The law addresses private social media accounts accessible through any device with electronic signals to transmit information. The legislation includes computers, telephones, and personal digital assistants as electronic communication devices.
Employees Have a Reasonable Expectation of Privacy
New York’s new law only applies to private social media accounts. However, employers may still access an employee’s or applicant’s public social media accounts or any other information about the employee that is generally available without the need to enter log-in information.
Employees with public social media accounts still enjoy some legal protection and a reasonable expectation of privacy. For example, the New York Legal Activities Law prohibits job employers from taking adverse employment actions against employees or applicants for participating in “protected” activity or conduct, such as
- Legal recreational activities
- Legal use of consumable products before or after work
- Membership in a union
- Political activities
Although social media use isn’t listed explicitly as a protected activity, certain activities an employee posts about may be protected, affording some additional protection to public social media accounts.
Fired for a Social Media Post? We Can Help
If you have been fired for a social media post or you’ve been denied a job due to your internet activity, it’s important that you speak to an experienced employment attorney. You may be entitled to compensation through a legal claim against your former employer. Don’t hesitate to contact the experienced employment attorneys at Lipsky Lowe LLP to schedule a complimentary case valuation and learn more about your legal rights.