Yes, Employers Can Refuse To Hire You And Can Fire You Based On Your Social Media Activity

By harley erbe


We've received a few employment law calls recently that indicate that a discussion of the connection between your social media activity and your employment prospects is necessary. The basic fact is that employers have the right to monitor employees' social media posts. Employees' social media activity can lead to discipline, even firing. Social media posts can also cost employees a chance at a promotion or even prevent them from being hired in the first place.

A review of a person's social media activity may first occur during the hiring process. Employers want to check a job candidates qualifications. They want to ensure that the potential employee will represent the company well. Consequently, most employers conduct background checks of potential employees. Those background checks usually include social media. Social media activity and profiles may offer information on professional achievements, alcohol or drug use, current employment status, judgment and maturity, and other topics that employers are interested in when considering a job candidate.

That employers may job applicants' review social media accounts during the hiring process probably isn't a great revelation to anyone. What does seem to be a revelation is employers' right to monitor the social media activity of current employees and make personnel decisions based on such activity. Generally, employers can fire or otherwise discipline employees for operating a blog or personal website or internet activity that the employer considers inappropriate, even if that internet activity does not occur during work hours or through the employer's internet portal. Common examples of such internet activity includes content that the employer deems offensive to it or clients or customers or puts the business in a bad light.

People will question whether their privacy or First Amendment rights protect their ability to say whatever they want during non-work related internet activity. They'd be wrong, at least in Iowa. Neither federal nor Iowa state law currently prohibit employers from firing or disciplining employees for engaging in lawful non-work related internet activity outside of the worksite. Nor are private sector employees protected by the First Amendment. I wrote about that here

There are three major exceptions to employers' right to monitor employees' private internet activity and make personnel decisions based on such activity. First, employers cannot do so in a discriminatory manner. Internet monitoring, and any personnel decisions based on such monitoring, must occur without regard to the person's race, nationality, sex, gender, age, religion, disability, or sexual orientation. Otherwise employment discrimination or wrongful termination claims may result.

Second, it's possible that internet activity regarding working conditions may be considered "concerted activity" for purposes of state or federal labor (union) laws, such as the National Labor Relations Act. Concerted activity includes communications for the purpose of collective bargaining, mutual aid, or protection among employees. It may violate state or federal labor laws if an employee is disciplined or fired for internet communications that are later determined to be protected "concerted activity."

Finally, all of this applies only to an employee's or job applicant's public posts. Most social media sites allow users to "protect" their posts or keep them private from anyone but people that the user authorizes. An employer may violate the federal Stored Communications Act if it accesses the social media posts of an employee when the employee intended the posts to remain private by adjusting the privacy settings to limit access only to viewers authorized by the employee. Employers who access such posts without authorization, or who have such authorization but intentionally exceed it, may violate federal law.

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