Can I Get Fired For My Social Media Posts? | When Employees Are Protected

Elon Musk is no stranger to making headlines from his driverless cars to his mission to Mars. But recently he’s gotten attention for a 2018 tweet that discouraged unions within his company Tesla.

The National Labor Relations Board found Musk’s tweet unlawfully threatened employees with the loss of stock options if they decided to be represented by a union. The board ordered the post to be deleted. 

The Labor Relations Board also ruled that Tesla had to reinstate an employee who was fired for union-organizing activity; the company also had to give him back pay. Tesla must also post a notice that addresses unfair labor practices at their California plant where the United Auto Workers had been trying to organize 10,000 workers. Tesla has since filed an appeal.

Despite the future outcome of Tesla’s case, the ruling has raised more questions about the legality of disciplinary actions employers and employees can face when it comes to social media posts. As more and more people turn to platforms like Facebook and Twitter to express their opinions, it’s become commonplace to see posts about people’s jobs, personal lives and political views. In some cases, employers may have the legal right to fire employees for their social media content. And as we see with Elon Musk, employees also have the right to take legal action against their employers in some cases.

At-Will Employees

It’s important to note that the majority of working Americans are deemed “at-will” employees. “At-will” employees are not protected by a contract or union agreement, meaning they can be fired without cause or warning. An employer can fire an “at-will” employee for any reason other than discrimination based on race, age, religion, gender, or disability.

Unprotected Activities

There is a wide array of situations in which employees can be fired for their social media content. Employees can be fired for posting information about customers or clients. Employees are also not protected against homophobic, racist or sexist posts. 

Posting photos that reflect poorly on the employee may also be grounds for dismissal. If an employer believes their employee is poorly representing the company with inappropriate pictures or content, they may choose to let that employee go rather than risk hurting the business’ reputation.

Protected Activities

However, employees cannot be lawfully terminated by participating in “protected concerted activity.” This generally allows them to discuss and criticize their employer when it relates to working conditions, employment policies and decisions. The National Labor Relations Act that governs the relationship between the company’s management and unions, protects the rights of employees to communicate with each other about these circumstances. 

Experienced Employment Law Attorney, Mediator, Arbitrator, Investigator, Legal and Media Commentator 

Twice-named a U.S. News Best Lawyer in America for employment and labor law, Angela Reddock-Wright is an employment and labor law attorney, mediator, arbitrator, and certified workplace and Title IX investigator (AWI-CH) in Los Angeles, CA. Known as the “Workplace Guru,” Angela is an influencer and leading authority on employment, workplace/HR, Title IX, hazing, and bullying issues.

Angela is a regular legal and media commentator and analyst and has appeared on such media outlets as Good Morning America, Entertainment Tonight, Law and Crime with Brian Ross, Court TV, CNN, ABC News, CBS News, Fox 11 News, KTLA-5, the Black News Channel, Fox Soul – The Black Report, NPR, KPCC, Airtalk-89.3, KJLH Front Page with Dominique DiPrima, the New York Times, the Washington Post, the LA Times, Forbes.com, Yahoo! Entertainment, People Magazine, Essence Magazine, the Los Angeles Sentinel, LA Focus, Daily Journal, Our Weekly and the Wave Newspapers.

Angela is a member of the panel of distinguished mediators and arbitrators with Judicate West, a California dispute resolution company.  She also owns her own dispute resolution law firm, the Reddock Law Group of Los Angeles, specializing in the mediation, arbitration, and investigation of employment discrimination, harassment, retaliation, and other workplace claims, along with Title IX, sexual harassment, assault, and misconduct conduct cases, along with hazing and bullying cases in K-12 schools, colleges and universities, fraternities and sororities; fire, police and other public safety agencies and departments; and other private and public sector workplaces.

For more information regarding resources for employers, businesses, and employees during this time, connect with her on LinkedIn for new updates, or contact her here. You may also follow her on Instagram.

This communication is not legal advice. It is educational only. For legal advice, consult with an experienced employment law attorney in your state or city.

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