Pop quiz! Can the comments you post on Facebook, Twitter or even Glassdoor cost you your job?
Generally, the answer is no. But it’s important that before you turn to social media to gripe about your employer or the annoying things your boss does, that you know what is and what is not an illegal move.
For the answer, we turned to Todd Wulffson, managing partner in the Orange County office of Carothers DiSante & Freudenberger LLP, a leading California employment, labor and business immigration law firm providing litigation defense and counseling to California employers. Wulffson has 25 years of experience counseling and defending businesses in labor and employment issues.
Here’s what he had to say when we asked him “Is It Illegal to Criticize Your Employer on Social Media?”
On the legal limits an employee should be mindful of:
“If an employee posts on a public site and uses the employer’s name, the employer has the right to review the posts – and in fact, the employer should be routinely making sure its name, brand and online reputation are not improperly tarnished. It is problematic for an employer to be targeting specific employees’ posts (it might be illegal discrimination), but if an employee’s post can be found in a search of the company’s name, the employee should make sure the potential post does not provide a basis for discipline or a possible lawsuit by the employer.”
On what’s okay and what isn’t:
“As a general rule, an employee has the right to post information about his or her wages, hours and working conditions online – and those are very broad categories. So, general complaints or grievances are protected under federal law (the National Labor Relations Act) and various state laws that protect employees from retaliation for complaining about working conditions. What is not protected are threats of violence, racial epithets or other hate speech, harassment, or disclosure of trade secrets or confidential information. The employer may have an obligation to investigate and ensure that other employees and/or its confidential information are protected.
Of lesser importance, but an area where employers are likely to take action, is when employees post false or misleading information on social media sites that they know to be false or are designed to harm the company’s reputation or that of its management employees.”
[Related: Submit a Review of Your Company]
On what to be cautious of:
“Finally, an area where employees find themselves in legal hot water is when they post positive information about their employer – but fail to disclose that they are employees. The Federal Trade Commission has specific regulations about employees disclosing their affiliation with a business if they post positive information online. Many businesses have been blind-sided with unfair competition lawsuits by competitors because employees were unknowingly trying to “help” the company’s marketing by posting positive information on social media sites, but not disclosing that they are employees.”
On if an employee can be fired for posting online:
“Yes – employees can be reprimanded if the employees are on notice that their (even off duty) posts may be found (in general searches regarding the company’s name or reputation) and reviewed by the company. If the employee posts information that is improper or requires the company to respond – for example, threats of violence, hate speech, harassment, disclosure of trade secrets, or information that may lead to the company being sued, discipline may not only be appropriate, but it may be legally required. It is a best practice for companies to have a clear, concise and informative social media policy, letting employees know what the limits are for online posting. Nobody wants to be perceived as, or act like, “Big Brother,” but employees also need to know that there are limits to what can be posted online, just as there are limits to what they can say in the workplace or even out in public.”
On what your boss has in his or her arsenal:
“Yes, there are legal protections that employers can utilize if they need or want to take action on an online post made by an employee. First, there is a great deal of case law authorizing (and in some cases mandating) disciplinary action against employees who engage in harmful conduct online. An employee who uses social media or online posts to harass, threaten or bully colleagues, may find himself fired the same way he would be if the conduct occurred at work. Employees who defame the company, disclose trade secrets in violation of the law or contractual obligations, or otherwise try intentionally to harm the company’s brand or reputation, may find themselves properly, and immediately, made available to the competition.”
No matter what, remember that laws vary state by state, and please refer to your employee handbook for specifics. See Glassdoor’s Community Guidelines for what’s ok and what isn’t.
EDITOR’S NOTE: This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact an attorney directly.