Can You Get Fired For Talking Politics On Social Media?

Some people enjoy professional spoils from viral fame, even when they are being subversive. Others get burned.

Jasmine Pak, a recent college graduate, landed a video fellowship at BuzzFeed after her LinkedIn post about repeated career rejection went viral. Admitting that you have applied for several jobs and been denied an opportunity at each turn is a gutsy move, but Pak's honesty and willingness to change her approach led to eventual success.

But Juli Briskman, a former employee at Akima LLC, was fired just a few days after a photo of her flipping off President Trump's motorcade hit the digital stratosphere.

In an interview with The New York Times, Briskman said "she decided it would be a good idea to mention it to a human resources official" — without being prompted. But the very next day, she was called into a meeting and asked to submit a "forced resignation," on the grounds that her gesture violated "the company's social media policy ban on 'obscene content.'"

Retracting a viral photo isn't an option (especially not after it reaches The Tonight Show Starring Jimmy Fallon). But some argue the 50-year-old cyclist and "she-ro" should just have been given a warning.

Briskman told HuffPost that one of her former (male) colleagues was "was reprimanded for calling someone 'a fucking Libtard asshole' on Facebook, but was allowed to delete the post and keep his job." In that case, the epithet came from a social media account that called out Akima by name, whereas Briskman's Twitter account did not name her employer.

Do you worry if your social media use could impact your employment? Here are some things to consider.

You Do Have Some Protected Rights On Social Media

Employees' right to discuss certain work-related issues on social media is covered as a "protected concerted activity" under Section 7 of the National Labor Relations Board (NLRB)'s National Labor Relations Act. The NLRB declares that both union and non-union workers "have the right to address work-related issues and share information about pay, benefits, and working conditions with coworkers on Facebook, YouTube, and other social media."

Complaining about any old thing isn't necessarily protected. The Board clarifies that "what you say must have some relation to group action, or seek to initiate, induce, or prepare for group action, or bring a group complaint to the attention of management." If you can make the case that your statement has some larger, transformative purpose for your workplace, you could successfully win a suit in court.

Last year, the NLRB ruled in favor of a Chipotle employee who went scorched earth on Twitter, disparaging the company's pay and inclement weather policies. He did not have to delete his tweets, contrary to Chipotle's request, and the ruling judge "further concluded that Kennedy's [comments] were for the mutual aid and protection of employees because they concerned 'the workplace or employees' interests as employees.'"

In cases such as this one, it is up to the employer to respect their workers' rights to gripe about issues of impact. In others, things aren't so clear. In a review of 14 suits involving employees' use of Facebook, the NLRB writes that "in one case, it was determined that a union engaged in unlawful coercive conduct when it videotaped interviews with employees at a nonunion job site about their immigration status and posted an edited version on YouTube and the Local Union’s Facebook page. In five cases, some provisions of employers' social media policies were found to be overly-broad" — essentially with the intent of catching anything they deem inappropriate with a wide net.

But in Briskman's case, she might not be able to sue. In a second report, the NLRB writes ruled in favor of the employer as the employee's post was not work-related. When it comes to social media outrage, it might pay to badmouth a job, specifically.
How To Avoid A Landmine

How To Avoid A Landmine

Even though you might end up winning a case, you may still lose your job or get wrapped up in court fighting an ex-employer. Because the vast majority of states in this country enforce at-will terms of employment (meaning you can be fired at any time, for any reason), you may retroactively bring suit. (Or work on very uncomfortable terms for an extended amount of time.)

The Society for Human Resource Management (SHRM) found that only 24% of organizations have a formal policy on "political activities," and one-third had an informal policy; but less than half (45%) specified what types of political activities were covered. (Possibly because actively curtailing certain discussions might be a violation of employees' rights.)

Government organizations were much more likely to have written, formalized policies compared to public, private, and nonprofit organizations (77% of government orgs did, compared to less than 25% for all others). Larger organizations were also more like to attempt to spell things out in writing, with 46% of workplaces with 10,000 or more employees having a written policy addressing political activities, compared to 14% of organizations with 100 or fewer employees.

Some general rules of thumb to follow? First: Double-check your employers' policy on social media discussions. Do they have one? If they don't, are there unwritten expectations that your manager or executives might expect you to live up to? Talk to HR, coworkers, or your boss to suss out the situation.

Second, try to follow the Golden Rule. Do not use social media as a way to retaliate against others, SHRM advises. Be honest and accurate (and quickly correct any mistaken posts), and respectful. Giving a middle-finger salute may feel righteous to you, but there's a chance you could face dire consequences.

"[Social media] disclaimers will likely not protect an employee if they post proprietary information."

Some people will continue to choose to speak out when they want to about the causes that matter to them, regardless of the risk. If you're worried about being penalized and want to know some fast facts, here are some tips from Edward Yost, the manager of employee relations and development in the human resources department at SHRM.

Do social media disclaimers like the ones people put in their Twitter bios ("Comments here do not reflect the views of my employer.") actually mean anything? Would they protect you in any way?

"Disclaimers and the format of a handle can be important to eliminating any confusion between speaking about one's own beliefs and speaking on behalf of another entity such as an employer. It is important adhere to the verbiage within the organization's social media policy and to include the specific disclaimer language, if required.

"However, the protections for speech on a social media platform are derived from the National Labor Relations Act (NLRA) definitions of protected concerted activity. Disclaimers will likely not protect an employee if they post proprietary company information."

If you are censured for comments you've made on social media, what recourse do you have? Can you request the opportunity to delete the post rather than be fired?

"[There is no] definitive guidance on how every social media posting/event should be viewed through the context of an employer's social media policies. The additional guidance will likely continue to play out through the courts in the months and years to come as incidents occur."

If your employment is terminated and you believe that your employer's decision was arbitrary — maybe two people were treated differently for allegedly violating the same policy — what options do you have?

"In any situation where an employee believes that they have been treated unfairly or unequally to another employee, or contrary to the written policy, they should avail themselves of the internal channels for raising the complaint. The human resources department is the best place to go to raise such a concern and to discuss the issue.

"If an employee does not receive a satisfactory response from the HR department, they may consider raising the issue to a member of the leadership team (the CEO, owner or principal, the COO), in accordance with established policies or processes.

"If an employee believes that their unequal treatment is based on a protected class status under Title VII (sex, race, religion, etc.), then raising the concern with an outside agency would be open to an employee or former employee."

What advice would you give to people who choose to discuss politics online?

"Employees are afforded certain protections regarding their political speech and activity. However, it is important to also recognize that when emotionally charged issues are being discussed, coupled with the immediacy of social media postings, angry, threatening and bullying comments can come out. Threats and bullying behaviors, especially those directed at coworkers or their employers, are not generally considered protected activities and can lead to actions taken against the employee.

"Additionally, employees should be aware of whether or not coworkers/colleagues routinely follow their social media postings, and the potential negative impact that highly negative/incendiary postings can have on their professional relationships within the workplace and within the business community.

"In regards to company policy, it is important for employers to know what political activity is protected when enacting any policy related to political speech in person or via social media. The NLRA protects certain concerted activities by employees who are discussing workplace conditions, such as discussing candidates' positions on raising the federal minimum wage. The General Counsel of the NLRB determined that employers can not interfere with political discussion where there is/could be a direct connection between employment related concerns and the issues that are the subject of the advocacy.

"For example, if the employee states that they are supporting candidate X because they are committed to raising minimum wage or ensuring the continuance of some aspect of employer provided health plans, the commentary may be considered protected concerted activity."

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