In the era of social media, workers are increasingly discovering that the things they post online can come back to haunt them in various ways. Losing a job over a tweet can seem unfair, but the fact is that employers have a lot of leeway when it comes to firing employees for what they post. However, there are limited exceptions.
Social media and at-will employment
In an at-will employment state like Nevada, both the employee and employer are free to end their relationship with or without cause. That means that an employer can choose to terminate an employee for no reason at all. A post on Facebook that reveals an employer’s confidential information, reveals an employee’s dishonesty, or calls into doubt the employee’s qualifications for the job, may simply give the employer cause.
But isn’t social media private?
Under Nevada law, an employer cannot require employees to disclose their user names and passwords for personal accounts on social media, and cannot take adverse actions against an employee for refusing to provide such information. NRS 613.135. Some read the statute to mean that an employer also cannot require employees to accept managers as social media connections—that is, as a friend on Facebook, or as a follower on Twitter. However, an employer can view public posts on social media just like anyone else. And if an employee voluntarily authorizes a manager to access posts, without prompting from the employer, it could be interpreted as a waiver of the employee’s expectation of privacy.
Employees should be especially careful when posting on social media using company equipment. Employers have the right to monitor use of equipment they own. Especially if an employee is posting on social media during working hours, the employer may have a good argument that the posts form evidence of disciplinary problem, even if it ignores the content of the posts themselves.
Employers are increasingly adopting specific written policies that address employee use of social media. If your employer has such a policy, be sure to read it. Although Nevada employers cannot regulate many aspects of an employee’s private activities, they can take steps to protect their legitimate business interests, which can include watching out for online behaviors that harm the company. For example, if a job involves working with a company’s clients, the employee should not post things that clients might find offensive, even if the clients aren’t likely to see them.
There are some limits on what employers can do with social media
An employer that bases a firing decision on an employee’s social media posts can violate the employee’s rights in a number of ways. Here are two examples:
- The federal National Labor Relations Act (NLRA) protects employees from retaliation for posting on social media in connection with collective bargaining or other matters related to working conditions. The NLRA has been interpreted to prohibit employers from taking adverse actions against employees who post negative comments about the company or managers on private social media accounts. Although an employee should not assume that posting public complaints about a boss is a form of protected speech, the NLRA does give leeway for using social media to organize and address problems at work.
- Social media posts often reveal information about a person’s age, race, ethnicity, national origin, disability, religion, or other personal traits that are protected against unlawful employment discrimination under federal or state laws. In Nevada, an employer cannot fire an employee on the basis of actual or perceived sexual orientation. See this site for a complete list of things protected against discrimination in the state.
GGRM is here to help employees who are wrongfully terminated in Las Vegas
If you have lost a job because of a post on social media and you’re trying to figure out your legal options, it can be helpful to talk to an attorney. At GGRM we have a long history of helping workers defend their rights. For a free consultation, call us today at 702-388-4476, or send us a request through our contact page.