A little over twenty years ago, on my first day of work as a lawyer, I learned how to use the Internet. Until that day, I had lived more than thirty years without it. Today’s millennials learn the Internet from the cradle and can’t imagine life without it. In fact, one in three young people in the United States believes the Internet is as important as air, food and water.
While Baby Boomers turned on the news when they got home from work, today’s workers turn to Facebook or Twitter – and often not just after work. Given this reality, social media acts as the main window to the world for many young employees.
The challenge for employers is to make sure that social media activity neither interferes with work efficiency nor casts the employer in a negative light publicly. The law is developing on the intersection between social media and the workplace – and the developments do not always favor the employer.
For example, employees have won their jobs back after being fired for cursing or ridiculing their employer on Facebook or Twitter. This happens when the employee tirade can be construed as a call to action to fellow workers to join together to improve the terms and conditions of their employment. Because the law protects people working together to improve the workplace, an employer must think carefully before taking action against an employee for job-related comments, even when such comments cast the employer in a bad light publicly.
Think of it this way. If your employee posts, “My boss is a jerk who screams at me and is unfair,” you can probably take action against that employee. But if your employee posts, “My boss is a jerk who makes us work overtime with no advance notice. Let’s try to do something about it,” then you could be violating the law by taking adverse action, because this employee could be seen as reaching out to co-workers to try to improve the terms and conditions of employment.
Some social media activity is clearly unprotected. Disclosing trade secrets, sharing customer information, and committing other acts of disloyalty against a company can be cause for discipline or termination. Similarly, one employee’s harassment of another on-line can be addressed by an employer; indeed, if such harassment is called to the attention of the employer, there could be an obligation to stop such conduct (or fire the harasser).
Social media continues to blur the lines between personal and professional life and sometimes has unintended consequences on both employers and employees. The law continues to develop in this area, and it is best to consult with counsel before taking employment action based upon something observed on a social media platform.