Know Your Rights
Minnesota is an employment “at will” state. “At will” employment means that an employer can fire an employee for any reason as long as the reason is not illegal. In some cases, employers may be able to legally fire employees for their social media posts on Facebook, Twitter, and Instagram.
While employers can fire employees over their social media posts, there are instances in which it would be illegal to do so:
First Amendment Protection
Many people believe that the First Amendment, which prohibits the government from abridging freedom of speech, protects their right to say anything they want online. However, the First Amendment only protects against limitations imposed by a public employer; a private employer can place limits on what employees can say.
To determine whether the First Amendment protects speech by a public employee, courts must determine whether the employee spoke as a citizen on a matter of public concern; whether the public employer has produced evidence to show that the speech created an actual or reasonably foreseeable disruption to the employer’s operations; and balance the interests of the employee, as a citizen, in commenting upon matters of public concern and the interest of the government, as an employer, in promoting the efficiency of the public services it performs through its employees. Palmer v. Cty. of Anoka, 200 F. Supp. 3d 842, 847 (D. Minn. 2016).
Protected Activity Under the National Labor Relations Act
The National Labor Relations Act (“NLRA”) may apply to actions taken against employees for their social media posts. The NLRA makes it an “unfair labor practice” to “restrain or coerce” employees from exercising certain rights under the NLRA, such as the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” See 29 U.S.C. §§ 157, 158(a). What constitutes “concerted activities” has been construed broadly by federal courts. Employees who are fired for conducting “concerted activities” through social media may have a claim against their employer.
Discrimination and Retaliation
Employers may not discriminate or retaliate against employees based on their age, race, religion, disability, national origin, sex, or sexual orientation. If an employee posts something online related to his or her protected class and an employer terminates the employee, the employee may have a wrongful termination claim. Additionally, state and federal laws prohibit retaliation against an employee for reporting misconduct in the workplace. Reporting a grievance through a social media may be considered protected activity.
Lawful Consumable Products
Minnesota law generally does not allow an employer to discipline or discharge an employee for the use of lawful consumable products outside of the workplace and during nonworking hours. See Minn. Stat. § 181.938. While there are exceptions to this rule, an employer should be cautious about taking adverse action an employee posting on social media about partaking in lawful consumable products outside of work.
To avoid being fired for what you post on social media, review and understand your employer’s social media policy. If your employer does not have a social media policy, ask your employer’s human resources department about whether there are any rules relating to the use of social media. Think before you post on social media. If you have any doubts, do not post it. If your social media posts have adversely affected your employment, promptly contact a employment attorney Minneapolis, Minnesota to discuss your options.
