Can You Be Fired For Your Facebook Posts? Yes (With Exceptions)

Do I really have to tell you to watch what you say on social media? Apparently I really do because I run into people all too often who were fired for inappropriate postings, emails, texts, or other comments. My best advice is this: don't put anything in writing that you don’t want posted on the front page of the company newsletter.

Examples of social media firings I've heard of that stand out are posting cruise pictures while on FMLA leave (doh!), posting a foul curse-laden rant about the company (probably legally protected), posting a photo of a nude museum statue (a coworker complained of sexual harassment even though they weren’t FB friends), and posting pictures of an office party gone wild (with some resulting retaliation by a boss captured on film). Basically, I’d say use your judgment and think twice, then think again before you post, whether pictures or just your thoughts. If you don’t think it would go over well on the company newsletter front page, don’t post it.

That being said, although HR does get involved in employee social media posts, 90% of the time it’s none of their business. And the NLRB would agree with me to the extent that employees have the right to gripe about and discuss working conditions. However, if the comments are racist, sexist or otherwise demonstrate that you are inclined toward unlawful discrimination or harassment, then I’d say it depends on the situation. You might be someone HR would want to give extra scrutiny to regarding your workplace behavior. 

But if you posted, say, a Nazi symbol on your Instagram but acted respectful and considerate of coworkers at all time, then I’d go back to my position that it’s none of HR’s business. On the other hand, posting a Nazi symbol, sexist comments or other evidence of a bias means that, if HR is watching or finds out about it, they’re on notice of the employee’s propensity to discriminate. If you do it at work, then the company could be strictly liable. So it’s a balancing act. You probably want to avoid being on that HR tightrope by watching what you post.

Most times it’s better for HR not to know what people are posting unless it somehow becomes disruptive at work. If HR is checking employee social media, they may accidentally find out about your disability, pregnancy, sexual orientation or other protected status and subject the company to potential discrimination claims.

If HR is going to scrutinize social media, personal emails written on work devices or other things that employees may think are none of their business, then HR should make a written policy and put people on notice. Otherwise, it will become a morale issue.

Some states have laws protecting employees for being fired for legal off-duty activities. Those laws may protect employees who post on their own time. 

For political posts, some states have laws that may help. For instance, in Washington State, it's illegal to retaliate against employees for failing to support a candidate, ballot position or political party.
California, Colorado, New York, North Dakota and Louisiana, say it's illegal to retaliate against an employee for their off-duty participation in politics or political campaigns. In Florida, it's a felony to "discharge or threaten to discharge any employee in his or her service for voting or not voting in any election, state, county, or municipal, for any candidate or measure submitted to a vote of the people." Here in Broward County, it's illegal to fire employees based upon political affiliation.

So you do have some legal protection for some social media posts. However, use caution, especially during political season.

Trump Campaign Noncompete Agreements May Break Multiple Laws

You may have seen that the Trump campaign is imposing confidentiality and noncompete agreements on its staffers that are quite broad. Here's the agreement, posted online. It's a great example of what not to do. Let's take a look at what they did wrong for a moment.

Election law: The agreement is with The Trump Organization. If Wikipedia has it right, “The Trump Organization (formerly Elizabeth Trump & Son) is an American privately owned international conglomerate based in Trump Tower in Midtown Manhattan, New York City. It serves as the principal holding company for Donald Drumpf's [okay, so some John Oliver fan has been playing with the site, but I think the rest is correct] business ventures and investments.” So they may well be violating election laws here because it is the campaign, not “the Trump Organization” that should be hiring campaign workers. If they work for The Trump Organization, then there are some serious in-kind contribution issues going on. On the other hand, if they are being paid by the campaign, why is the campaign paying for legal issues relating to his family members? I wonder if the Federal Election Commission has already opened an investigation on this.

National Labor Relations Act: Onto the employment law issues, NLRB has been cracking down on non-disparagement agreements that seem to prevent or discourage criticism of management during employment, and this one does that. An example is Quicken Loans, Inc., 359 NLRB No. 141 (June 21, 2013), where an administrative law judge found that a similar provision would have a chilling effect on employees who wanted to discuss working conditions. The judge said the "line between lawful and unlawful restrictions is very thin and often difficult to discern." The judge found the agreement language violated the law and that prohibiting disclosure of "non-public information relating to . . . the Company's business, personnel . . . all personnel lists, personal information of co-workers . . . personnel information such as home phone numbers, cell phone numbers, addresses and email addresses" would hinder employees' exercise of their rights under the National Labor Relations Act.

Antitrust: I don’t know what level employees that The Trump Organization is imposing these agreements at, but there can be serious antitrust issues if the company has no legitimate interest to protect other than preventing competition. The New York AG has been going after companies imposing noncompetes with no legitimate interest. A good example is the Jimmy John’s case. The FTC and Department of Justice also have antitrust divisions that could scrutinize a noncompete agreement imposed solely to prevent competition. Here are some pieces I’ve written on topic:

Non-Compete Agreements Can't Be Used to Prevent Competition

Low-Wage Worker Noncompetes? Can You Say Antitrust?

The White House Wants Your Horror Stories on Noncompetes and Wage Collusion

I'm not the only one who has noticed problems with these agreements. For an excellent analysis of some legal problems with this agreement, take a look at Robert Teachout's piece on SHRM's website, Trump Noncompete Agreement Draws Criticism.

So if you're drafting a noncompete or confidentiality agreement, the Trump campaign's agreement is a good example of what not to do. If your employer's agreement looks a lot like this one, it may be time to get some legal advice from an employee-side employment lawyer in your state, because the laws on noncompete agreements vary from state to state.

Is Retaliation Illegal? Sometimes

Lots of people approach me every week and say they feel they were retaliated against. I usually have to ask, "Retaliation for what?" I think there's a basic misunderstanding of what retaliation is, and when it's illegal. The first part of the problem is understanding retaliation itself. Webster's defines retaliation as:

To do something bad to someone who has hurt you or treated you badly : to get revenge against someone

So retaliation = revenge.

The next issue, which is the core problem in retaliation cases, is whether what you did that was "bad" in your employer's eyes is something that is legally protected against retaliation. Here are some examples:

1. Complaining about your boss being incompetent: Your boss is pretty much guaranteed to retaliate if you complain about him to management. If you complain that he's incompetent, you have zero legal protection. He's allowed to exact his revenge. However, if you discuss with coworkers that your boss is a terrible manager and you go to his boss or HR to discuss improving your working conditions on behalf of yourself and your coworkers, then you may well be protected by the National Labor Relations Act.

2. Complaining about illegal activity: If you complain that a coworker or your boss is embezzling company funds, taking kickbacks or stealing company property, you probably have zero legal protection (if the company is publicly traded, you may have some protection as an SEC whistleblower, but most people have no protection). And I see it happen time after time, that an employee reports that a coworker is ripping the company off and they are retaliated against. However, if you complain that he's trying to make you defraud Medicaid or do something else that's illegal on behalf of the company, you may well be a protected whistleblower.

3. Complaining about bullying, hostile environment or harassment: Bullying is only illegal in Tennessee, and only if you're a government employee in Tennessee. Complaining about bullying comes with zero legal protection against retaliation. If you complain that you're in a hostile environment or being harassed, you're complaining about bullying. Again, zero legal protection. However, bullies tend to pick on the weak and the different. If you report that the bully is targeting you or others around you based on race, age, sex, national origin, religion, disability, pregnancy or other legally protected status, then you have legal protection against retaliation. You have to add the discrimination piece to have legal protection. 

The other possible legal protection if you complain about bullying is the National Labor Relations Act. If you discuss with coworkers that the bully is making life miserable and you go to management or HR to report this on behalf of coworkers and yourself (and you aren't a supervisor, and you are otherwise covered under the NLRA) then you may be legally protected against retaliation.

4. FMLA, worker's comp claims, disability accommodations: You do have legal protection against retaliation for seeking a remedy under many employment law statutes. If you take Family and Medical Leave, make a worker's comp claim or seek accommodations for a disability, you are likely protected against retaliation. However, if you just take sick time or vacation time, most states have no law protecting you against retaliation for that.

5. Complaining to police: If you're punched in the face by a coworker or threatened, most states don't legally protect you against retaliation for going to the police. However, EEOC says, in its latest guidance on retaliation, "it is protected opposition for an employee to contact the police seeking criminal prosecution of a coworker who engaged in a workplace assault motivated by disability, race, or sex, even though it is not a complaint to a manager or to a government agency that enforces EEO laws." So you're legally protected if your coworker punched you due to your religion or race. You're also legally protected if you file a police report about rape at work. 

6. Complaining to DOL, OSHA, EEOC: If you go to the Department of Labor to complain about unpaid overtime, OSHA to complain about workplace safety issues or EEOC to file a charge of discrimination, you are always legally protected against retaliation.

So you can see that retaliation is mostly legal. However, in many situations it only takes a little change in your complaint or activity to be legally protected against retaliation. The way you complain makes all the difference. Think carefully before you make a complaint at work if you want to prevent retaliation.