There is a lot going on in the country right now. Between the 2020 Presidential election and Covid-19, people are talking. The talk, however, is no longer at the water cooler or in the employee lounge. It is happening on social media. Facebook, Twitter, Instagram, LinkedIn and the like, have changed the way we express our opinions. If you are in the workforce and use social media, this new frontier can put you at risk. This is what you need to know.
The First Amendment May Not Protect You
- Most people think that the First Amendment’s right to freedom of speech applies to them and they can say whatever they want in the workplace. False. Unless you work in the public sector (local, state, or federal government), this right does not protect you. The First Amendment prohibits governments from infringing upon your right to speak publicly as well as public employees from speaking freely. And even in the latter case, governments and public employers can adopt reasonable rules to regulate speech.
Can I Discuss Politics on Social Media?
- Yes, but you may be at risk. New Jersey is an at-will employment state which means a private employer can terminate you for any reason or no reason at all. Therefore, if an employer concludes that your speech is causing other employees to feel uncomfortable or is harming or interfering with its business, you could be disciplined or terminated. This extends to posting on social media, wearing political clothing, pins, masks, etc. Make sure to read your employee handbook to find out what conduct violates your workplace rules.
However, if you believe your employer is targeting you, not due to your political speech, but because of your race, sex, age, religion, national origin, disability, or other protected characteristics, you may have a discrimination claim. In addition, an employment contract or a collective bargaining agreement that spells out terms of discipline or termination may protect you.
“Concerted Activity” Is Legally Protected
Employees (union and nonunion) who share information in an effort to improve their working conditions are protected under The National Labor Relations Act (NLRA). This is considered “protected concerted activity” because it is for the “purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.” www.nlrb.gov.
Examples of protected concerted activity may include employees discussing their concerns about salary or working conditions or employees wearing political buttons or shirts referring to a topic protected by the NLRA, such as “X candidate favors improved healthcare.”
Again, to receive protection under the NLRA, your political speech or expression must relate to working conditions and must have some connection to group action or an attempt to bring a group complaint to the attention of management. www.nlrb.gov
Comments on social media that are “mere gripes not made in relation to group activity among employees” is not protected. Likewise, speech that is profane, defamatory or malicious against the company is not protected. NLRB v. Honda of America Manufacturing, Inc. An employer will also have a duty to act if the political speech infringes upon a protected group (based on their gender, race, age, disability etc.) and creates a hostile work environment for other employees.
If You Are a Whistleblower, Your Speech May Be Protected
The New Jersey Conscientious Employee Protection Act (CEPA) protects whistleblowers who speak out about their employer’s potential legal violations. www.nj.gov. CEPA prohibits employers from retaliating against employees who have complained about a practice that the employee reasonably believes is unlawful or indisputably dangerous to the public health, safety or welfare. Several federal whistleblower laws also protect employees from disclosing fraud such as the False Claims Act.
Can an Employer Ask Employees for Passwords to Their Personal Social Media Accounts?
- No. In 2013, New Jersey enacted a social media privacy bill to protect employees’ personal social media accounts. P.L. 2013. C. 155. The law prohibits employers from asking current or prospective employees for usernames, passwords, or access to a personal account. www.njleg.state.nj.us. An employer cannot ask you to waive this right.
- There are exceptions. An employer may be legally required to access an employee’s personal account to investigate work-related misconduct happening on that account if they have specific information of wrongdoing. An employer can view an applicant’s or employee’s social media posts if they are in the public domain. Finally, an employer can request access to e-mails and social media accounts that an employer provided.
Expressing one’s self on social media is at an all-time high and there are a lot of evolving rules and grey areas. If you feel your employer mistreated you because of your social media posts, you may have a discrimination or unfair labor practices claim and should consult with an attorney. McOmber McOmber & Luber have experienced employment attorneys that can help you navigate these ever-changing waters. Please call our office in Red Bank, New Jersey at 732-842-6500, our Newark, New Jersey office at 973-878-9040, or our Marlton, New Jersey office at 856-985-9800 to find out more.