Can Past Social Media Activity Impact Future Employment?

Social media is a real and prescient part of modern society, impacting far more than the social interactions that we have with our friends and peers. Nowadays, the way we represent ourselves online can have a very real influence on the workplace… leading many to question how legal it is for social media to impact one’s employment status.

Basically, a lot of people are wondering if an old post or forgotten tweet could lead to them being fired. As is the case with so, so many questions like this, the answer is that it all depends.

How Can Social Media Activity Impact a Person’s Employment?

The balance between someone’s personal social media account and their workplace is a delicate one, influenced by a bunch of different circumstances and misconceptions.

First Up, Social Media-Based Firings Aren’t a First Amendment Issue

As written, the First Amendment made to the United States Constitution reads:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Did you catch that first part? That “Congress shall make no law” part? That’s the key component that prevents social media-based firings from being outlawed by some of the oldest laws in the United States.

While many people take the First Amendment as permission to say whatever they want in any situation with no consequences, this simply isn’t factual. By its own composition, the First Amendment clearly states that it only controls what Congress is able to do concerning the rights of American citizens… most pertinently, their freedom of speech.

In short, while the government cannot act against you based on what you’ve posted online, an employer certainly can to some extent. This is because most states are “at-will” states, or states where the employer and the employee both have a say in whether or not a working relationship will continue. While this gives an employee the right to quit as they please, it also gives an employer the right to terminate the employee for any legal reason.

Having said that, other laws exist in some states that limit what an employer can do based on their employees’ social media activity. For instance, an employer can’t fire one of their employees for…

• Sharing political messages: Some states have laws in place that forbid an employer from disciplining or terminating an employee based on any politically-charged messages that the employee has shared online. 

• Reporting issues/whistleblowing: Numerous state and federal laws exist that shield an employee from retaliation if they share issues in their workplace online, such as harassment, unsafe working conditions, discrimination, and the like.

• Venting: Let’s say that someone working at a company has an issue with the hours they are assigned to work. By the laws of some (not all) states, they are free to complain about these hours on social media in any way they please without fear of being fired. When these discussions are held with coworkers, they are defined as “protected concerted activity.”

In addition to these limitations, some states legally separate the workplace from an employee’s personal life, meaning that any activity the employee partakes in and posts about during their free time (provided that it is legal) cannot be used as grounds for dismissal.

Having said this, there are times that social media activity is fair game for the employer to consider. The National Labor Relations Board (the agency that grants employees the freedom to share issues without fear of reprisal) draws a clear line between actual safety issues and something like the way that a supervisor dresses.

When Can Social Media Activity Be Used as Grounds for Termination?

Make no mistake, there are plenty of circumstances where the employer is well within their rights to terminate an employee based on what they’ve shared on social media in the past, or at any point during their employment with the company. Let’s go over a few of the reasons that social media can justifiably be used by an employer as justification for firing someone:

• Sharing confidential information. Naturally, any workplace would have an issue if team members were sharing privileged information on their social media accounts. For starters, such activity just invites in data breaches and the resulting consequences. However, what counts as confidential information may come as a surprise. There is precedent of a new hire’s offer being revoked after terms of their employment were shared online.

• Complaints. Remember how we mentioned that some states prevent a workplace from disciplining an employee if that employee has posted complaints on their profiles? That isn’t the case everywhere, so an employee could very well receive a pink slip if they complained about their job, employer, or customers.

• Resume exaggeration. If a company’s HR department is doing its due diligence, you know that they’ll check a prospect’s social media history… including the work experience that has been shared. If something on their resume isn’t reflected on their profile, an employer may very well take that candidate out of consideration.

• Inappropriate content. There are plenty of reasons that an employer is well within their rights to terminate someone’s employment if the evidence is plastered on their profiles. Whether the employee has shared references to drug use or a few pictures of their wild and drunken antics, racy or explicit content, profanity or inappropriate comments, or has actively engaged in cyberbullying or online racism, you can imagine why a company would be hesitant to associate that person with their brand.

Basically, it boils down to this, if an employee’s conduct makes the business look bad by association with them, or actively puts the business at risk of legal recourse, the company can have them pack up their desk. Mind you, it is best that your business’ acceptable limits regarding your employees’ online conduct is clearly outlined in your internal documentation. That way, you have the precedent established to show that the employee knew what the consequences would be.

Companies Need to Be Mindful of What They Post, Too

All this being said, a business also needs to maintain some standards on their social media accounts. While your business’ social media is an excellent marketing opportunity, it can easily turn your prospective clients away if you treat it like another personal profile and create an unprofessional impression.

Social media is a great way to market your business without making it seem like you’re actually marketing your business. The benefits are clear enough that you really shouldn’t pass it up.

We understand that this can all seem like a lot, which is why we’ve created a way for managed service providers to worry a little less about keeping their social media updated. In doing so, we’ve effectively taken away any excuse you may have for not using social media at all.

By signing up for our Social Media as a Service offering, you can enjoy having a social media presence filled with business-appropriate content to keep your business’ name in front of your clients and prospects. If you’d rather handle things for yourself, we also have the Ultimate Social Media Rig for your convenience, designed to cut back on the time managing your social media takes.

To learn more about either of these options or any of our other marketing services for MSPs, give us a call at 888-546-4384 now.