‘Legal Or Illegal?’ California Employers Taking Adverse Employment Actions Against Employees For Social Media Posts

This is the first blog post of our new segment called “Legal or illegal?” in which our Los Angeles employment law attorney from Rager & Yoon – Employment Lawyers will be helping you get a better understanding of what actions on the part of your employer are prohibited by California and federal law.

Given that just about any employees in California – both private and public – can encounter this problem, we decided to discuss the issue of employers taking adverse employment actions (reducing pay, wrongful termination, or demotion) against employees for their social media posts.

When is it illegal for California employers to regulate their employee’s social media content?

When Employees Are Protected In What They Post On Social Media

“Under the Barack Obama administration, the National Labor Relations Board (NLRB) established a social media policy that protects private employees in regards to their social media activity,” says our experienced employment law attorney in Los Angeles.

Under this employee-favored policy, private employees in California and all across the U.S. are protected from wrongful termination, or any other retaliation, punishment and adverse employment action from their employers for posting certain information on social media accounts.

The policy developed by the NLRB during Obama’s presidency permitted private employees to engage in “concerted activity” on Instagram, Facebook, Twitter, and other social media platforms. “What does concerted activity mean?” you may be wondering.

What Types Of Concerted Activity Is Protected By The NLRB

Concerted activity is the term that defines the activities private employees are permitted to partake in without fear of being retaliated against, reprimanded, disciplined or facing any other adverse employment action. This includes discussing your working conditions or anything related to your employer or work on social media.

More often than not, quite a few factors will be taken into account to determine whether or not an employee has engaged in “concerted activity” when discussing his/her work or employer on social media.

When Employees Are Protected And When They Aren’t

Generally, an employee is protected in what he or she posts on Facebook, Twitter, Instagram, and other social media sites as long as that employee is posting publicly or discussing with another employee the terms, conditions, privileges, and benefits of their employment, including but not limited to the hiring process, wages, working conditions, work environment, promotions, and other work-related things.

As you may have noticed, the “concerted activity” is a very broad standard, which often makes it difficult to determine whether or not an employee is permitted to discuss his or her work on social media. For example, if an employee criticizes his or her employer for hiring only white individuals under 40, that employee is most likely concerned about the lack of diversity and discrimination within the company, and how that might affect the company’s reputation. In that case, the employee’s comments will most likely be considered “concerted activity.”

If, on the other hand, an employee post about an incident that occurred during his or her shift and that incident was not focused on his or her working conditions, that social media post will most likely not be considered “concerted activity.”

NLRB’s Protections Under The Trump Administration

Do keep in mind that the NLRB’s social media protections do not extend to public employees, who can still be protected under the First Amendment in their social media posts. There is a different set of regulations and laws that exist for public employees, as, for example, they are not permitted to show bias or discrimination in their social media posts because such employees have the duty to serve all people in the community regardless of gender, age, race, national origin, sexual orientation, and other protected characteristics.

While some of the NLRB’s regulations remain under the Donald Trump administration, most of the Obama-era rules have been either abolished or transitioned back to a more employer-focused policy.

During Trump’s presidency, it has become confusing which social media posts are protected from adverse employment actions. If you have been fired over a social media post or have faced any other form of an adverse employment action, do not hesitate to speak to our Los Angeles employment law attorney. Call Rager & Yoon – Employment Lawyers at 310-527-6994 for a free case evaluation.