In today’s world we cannot ignore that social media is a huge part of our everyday lives. What you post is available for others to see. Even if your social media accounts are private, your posts are available to be seen by your family, friends, and even coworkers once you’ve accepted or extended a “Friend Request.”
But, that’s my private life, right? It can’t affect my employment, right? Wrong.
Social Media and Applying for a Job
Be prepared that prospective employers may look at your social media accounts. They may not tell you outright that that is what they intend to do, but it is safe to assume that when applying for a job they will. There is nothing in the law that prevents potential employers from doing so. And in a world where nearly everyone has a social media account of some sort, employers may feel that this is the best way to find out more information about the people they intend to hire.
It would be illegal for an employer to discriminate against an applicant based race, color, national origin, religion, sex, age, or disability, as may be learned by searching someone’s social media. And, of course learning that an employer has done such a thing would subject them to liability.
However, there are many things that may be posted on someone’s social media that may be off-putting to a potential employer. And, if an employer sees something on a potential employee’s social media pages they don’t like, they may very well be within their rights not to hire an individual. Some employers may not like offensive language, photos, or a partying lifestyle. And, as long as the potential employer’s reason not to hire an applicant isn’t in and of itself illegal there may be no recourse if an applicant learns that what was viewed on their social media accounts was the reason they didn’t get the job.
Social Media and Discipline at Work or Termination from Work
Just as what is posted on social media accounts can prevent an applicant from getting a job, it may also be the basis for an employer disciplining or terminating an employee.
In Texas, we have a doctrine called employment at-will. As you may know this means that an employer can take adverse employment actions (e.g., discipline or termination) against an employee for any reason or no reason at all, as long as the motivation for doing so isn’t illegal. As discussed above, illegal motivations may include things such as race, sex, age, or other legally protected characteristics. However, there is nothing in the law that stops an employer from disciplining an employee for making discriminatory comments on their social media pages or talking negatively about their coworkers.
What about free speech? This doesn’t apply in the workplace in the same way that it may apply out in the world. Because of at-will employment, employers can greatly limit the speech of their employees. In some instances, the rules will be different for private and public employers, but every employee should know the limitations placed on them by the jobs they hold.
If you have been disciplined or terminated for comments posted on your social media account and want to know whether you were protected by the law in making such remarks, contact our employment lawyers to discuss your specific circumstances and better understand your rights.
Social Media and Litigation
Increasingly, the things employees post on their social media accounts are becoming a part of courtroom litigation. If you engage in litigation, know that what you post on your social media accounts may become part or your court case if relevant. For instance, an employer may want to show that the reason they terminated an employee was for not working, as opposed to a discriminatory reason. If there are social media posts being made all day by an employee, the employer may try to use those to show that the employee was posting during the workday instead of working. Or, in a case of disability discrimination where an employee requested a reasonable accommodation, an employer may be searching for images that undermine an employee’s disability claim. There are a number of ways that an employer may try to use what they find on an employee’s social media accounts against them.
In the end, the best advice is for employees to be mindful of what they choose to share on their social media accounts. If your accounts present issues for you at work, consult with one of our Texas Employment Lawyers to learn your rights.