Everybody has heard of instances where a social media post has blown up, gone viral and led to problems for the poster (or their employer) in the workplace.
A single post on Facebook or a TikTok reel done on an employee’s own time can sometimes trigger internal investigations, disciplinary action or even legal claims. Because these situations can involve a complicated dynamic between privacy rights, freedom of expression and workplace policies, both employers and employees can benefit from better understanding how social media activity can reverberate in the workplace – and what that means when it does.
An employee’s social media activity can be problematic
Employees often assume that personal social media accounts are entirely private or protected from employer scrutiny. In reality, their personal online activity can have big repercussions for their employment. “Freedom of speech” does not equate to freedom from consequences.
Certain social media posts by employees are legally protected, even when they reflect negatively on their employers. For example, a post complaining about work-related issues like poor pay, insufficient benefits or bad working conditions may be considered “concerted activity” if it is designed to initiate group action or raise attention. A post simply trashing an employer’s reputation for the sake of “venting,” however, is not.
In general, online speech frequently falls outside legal protections, particularly when a post or comment involves:
- Threats or harassment
- Disclosure of confidential information
- Violations of workplace policies
- Conduct that substantially disrupts business operations
- Harassment or discriminatory conduct
The challenge is that these situations are highly fact-specific. A post made after work hours from a personal account may still affect workplace relationships or business operations, depending on its content and how visible (or viral) it becomes.
Clear expectations can eliminate a lot of problems
Most companies of any size now have social media policies in place to try to prevent problems and potential litigation. Unfortunately, unclear expectations, outdated policies and inconsistent standards or enforcement can all create conflicts.
Blanket rules prohibiting employees from posting “negative comments” about a workplace may not be enforceable, especially when employees are discussing working conditions, wages or their treatment in the workplace. However, an employer is usually well within their rights to limit the use of company devices or social media accounts and discipline employees for egregious online behavior that, ultimately, reflects poorly on the company.
When an employee’s online activity bleeds into the workplace dynamic, internal investigations may be necessary. These investigations have to consider whether the company’s policies are clear, uniformly enforced and within the bounds of the law. Regardless of what side of the matter you are on, legal guidance can help you understand both your rights and your options moving forward.
