California is an “at will” employment state, meaning that employers can fire employees at will for any legal reason (or no reason), including for social media posts. However, there are a few exceptions. First, employers may not terminate employees for discriminatory (illegal) reasons. The National Labor Relations Board also protects employees from being retaliated against for “concerted” activities. Sometimes, postings on social media will implicate these "concerted" activities.
In addition, if you work for the government, you have additional rights under the First Amendment. Because the First Amendment does not apply to private employers, these rights do not protect you at work.
Exception: Discriminatory Termination
Title VII of the Civil Rights Act of 1964 protects employees from workplace discrimination based on the following characteristics: race, color, religion, sex, and national origin. Thus, if an employer terminates an employee for posting something that is related to a protected characteristic, the termination may be illegal. Most states, including California, have laws that mirror the protected categories in Title VII and articulate additional protected classes. Learn more about protected classes here.
Examples might include an employer terminating an employee for tweeting about his religious beliefs or a boss firing someone for posting a photo of themselves and their same-sex partner.
Exception: Concerted Activities
The National Labor Relations Board protects employees from being retaliated against for “concerted” activities, which gives employees the right to discuss their jobs with coworkers. Thus, an employer might not be able to legally terminate an employee for a social media post that is an honest effort to discuss work-related issues with coworkers. If the social media post is not really intended for coworkers, though, it is probably not protected.
An example of a protected post might be one coworker’s tweet to encourage women to eat lunch together on a certain day in order to discuss workplace harassment. Another might be a post that attempts to organize a demand for better benefits.
Takeaway: Consider Safeguarding Your Social Media
Of course, posting things that violate an employment agreement (like divulging trade secrets) or upset your boss (like damaging the company’s reputation or disparaging a supervisor) can lead to termination. Some people may be surprised to learn that the first amendment’s right to free speech does not protect them; this is because the amendment protects you from government interference, meaning that the government can’t arrest you for what you say, not that your private employer can’t fire you for what you say.
The two situations above--discrimination and concerted activities--are the two main exceptions to the rule that you can be fired for social media posts, and these limited exceptions are often difficult to prove given that employers can fire you for any reason but an illegal reason. Employers will often point to other reasons for firing you, even if it was your protected social media post that was the motivating factor.
Many employers also scour social media before hiring job candidates. Because they do not have to give a reason for not hiring a candidate, it’s possible that they decide not to hire you because of social media. Accordingly, you may want to consider safeguarding your social media and thinking twice before you post.
However, if you believe you have been fired or not hired for social media posts that were legally protected, consult our employment lawyers today.
Talk to an Experienced Employment Lawyer Today
At King & Siegel LLP, we have helped hundreds of workers hold employers accountable through legal actions. If you believe you have been fired or not hired for posting legally protected content, our attorneys are here to help.
Need legal help? We provide free, confidential consultations to California workers. You should contact us as soon as possible to make sure your claim is still within the time limits set by law. Contact us today through our website or give us a call at (213) 214-3757 to schedule a free consultation.