There are constantly stories on the news about someone getting fired for a problematic tweet that went viral or a social media post that their employer feels casts them in a bad light.
Is that even legal in California? Here are the basics employers need to know:
California is notoriously employee-friendly, but there are limits
Employees in this state enjoy many benefits, but California is still an “at will” state, meaning that you have the right to terminate your working relationship with an employee for any legal reason – or no reason at all. That includes firing them for questionable or offensive social media posts.
However, there are some exceptions, and you need to understand them. They include:
1. Your reasoning cannot be discriminatory
Federal and state laws prohibit employment discrimination based on an employee’s race, color, ancestry, national origin, religion, creed, age (40 and over), disability, sex, gender, pregnancy and related conditions, sexual orientation, gender identity or expression, genetic information, medical condition and military or marital status.
This means that you may not, for example, fire an employee for religious memes, for posting a picture of themselves performing in drag or for posting pro-LGBTQ material.
2. The post cannot be part of concerted activities
Employees also have a right to certain “concerted” activities, such as discussing their working conditions or pay with others or using social media to promote unionization.
This can be a complicated issue because a social media post that seems to blatantly disparage your company may or may not be a genuine attempt to engage with their coworkers and address shortcomings.
Often, the issue of social media comes up in employment situations due to an employee’s bad behavior. It may come up because they’re featured in a video taken by someone else that went viral. While you have a right to protect your company’s image and reputation, it is still important to pause before you act – and wisest to seek legal guidance if there are any questions about your rights.
