A social media post made in seconds can have a lasting impact on your job. Living in this digital era raises important and ever-changing questions about employee rights, employer responsibilities, and social media usage.

In New York State, social media posts can lead to workplace discipline, including suspension or termination, but it depends on what was posted, when it was posted, and whether the post is legally protected.

How Social Media Can Affect Workplace Discipline in New York

A social media post can lead to workplace discipline when it violates company policies, discloses confidential information, constitutes harassment or threats, or otherwise interferes with legitimate business interests. However, certain online discussions about wages, benefits, unionization efforts and working conditions may be protected under federal and/or New York State labor law.

When Can Employers Take Disciplinary Action?

Initially, employers should ensure that they have a clear social media policy in place that sets expectations for appropriate employee online behavior and reduces the risk of workplace issues arising from employees’ social media activity.

Federal and State anti-discrimination laws apply to workplace conduct regardless of whether it occurs in person or online. Additionally, New York expressly requires employers to address conduct they become aware of that contributes to a hostile work environment. This means an employer would be legally obligated to act when an employee posts discriminatory or harassing content directed at coworkers, supervisors, customers, or applicants based on protected characteristics such as race, color, religion, sex, national origin, disability, age, or genetic information.

Further, according to the National Labor Relations Board (NLRB), an employee may lose the protections afforded to their social media activity if a post is egregiously offensive, knowingly and deliberately false, or publicly disparages the employer’s products or services without relating the comments to a labor dispute. Employees’ rights to discuss wages, benefits, and working conditions with coworkers, however, may be protected under federal labor law.

As a result, employers may investigate and take appropriate disciplinary action. This means employees could face disciplinary action if social media posts contain obscenity, disparaging or false comments, discriminatory, harassing, threatening, or otherwise retaliatory content that affects the workplace or contributes to a hostile work environment.

What Privacy Rights Do Employees Have on Social Media?

Employees have privacy rights on social media, but those rights are not unlimited. Whether social media activity is protected or considered private depends on factors such as the audience for the post, the employer’s policies, and applicable federal and state laws.

Employees generally have the right to:

• maintain personal social media accounts and engage in lawful activities outside of work (New York law provides protections for certain lawful off-duty activities, including some political activities conducted outside working hours and away from the workplace, and whether a particular social media post is protected depends on the facts and circumstances).
• control access to private social media accounts (New York law generally prohibits employers from requiring employees or job applicants to disclose usernames, passwords, or other authentication information for personal social media accounts); and
• discuss wages, benefits, and working conditions with coworkers, including through social media, as such discussions may be protected under federal labor law as protected concerted activity.

Does Free Speech Protect Employees on Social Media?

Freedom of speech does not automatically protect employees from workplace discipline for social media activity. While private-sector employees may have protections under federal labor law for certain workplace-related discussions, not all social media activity is legally protected. The NLRB recognizes that protected concerted activity may include discussions about wages, benefits, and working conditions, but certain conduct may lose protection.

When Should Employees Consult an Employment Lawyer?

Employees may want to consult an employment lawyer if they believe they have been disciplined, terminated, or treated unfairly because of their social media activity and are unsure whether their rights have been violated.

Consider seeking legal advice if:

• You were disciplined or fired for discussing wages, benefits, scheduling, workplace safety, or working conditions with coworkers on social media. These discussions may be protected under federal labor law as protected concerted activity.
• You believe you were disciplined for lawful off-duty political activity that took place outside working hours and away from the workplace (New York law provides protections for certain off-duty political activities).
• Your employer requested access to your personal social media account, such as demanding your username or password.
• You were terminated based on social media activity that occurred on a personal account outside of work, especially if the reason for the discipline is unclear or appears inconsistent with company policy.
• You believe the discipline was motivated by discrimination or retaliation, such as your race, religion, age, disability, sex, or participation in protected workplace activities.
• Your employer’s social media policy seems overly broad and may restrict employees from discussing workplace issues that are protected by law.

Not every disciplinary action related to social media is unlawful. However, if you were disciplined or terminated for activity that may be protected by federal or New York law, an employment lawyer can help evaluate the facts, explain your rights, and determine whether you may have a legal claim.

When Should Employers Consult an Employment Lawyer?

Employers should consult an employment lawyer before taking any action against an employee involved in a social media-related issue. Early legal guidance can help employers evaluate risks, ensure compliance with federal and New York law, and make informed decisions.

A knowledgeable employment attorney can help you gain an understanding of the unique difficulties each workplace conflict presents and work toward a solution that benefits you. Tully Rinckey attorneys have the experience to assist both employees and employers in achieving their objectives, regardless of the matter, which may include discrimination, harassment, or any other claim involving worker rights or employer responsibilities. Call 8885294543 or contact us online today for a consultation and get an advocate who will fight for your rights and help secure your career and your future.

Benjamin Westerman, Esq., focuses his practice on federal sector labor and employment and New York State employment law out of Tully Rinckey PLLC’s Latham office. Benjamin represents clients in federal, state, and private employment law matters, including claims of discrimination, harassment, retaliation, whistleblower actions, and disciplinary matters.