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January 21, 2022

by Zach Pyers, Esq. & Kenton Steele, Esq., Reminger, Co., L.P.A.

Social media revolutionized the way we communicate. Approximately 70 percent of adults are active on social media, and that percentage is rising each year. Social media allows us to share our thoughts with people all over the world. It has also become a tool employers can use to monitor employees or investigate applicants.

While it has often been said we should “dance like no one’s watching,” everyone should post on social media like their boss is reading – because they probably are. Thus, employees should consider how social media activity may impact their employment. But, there are limits on when disciplinary action can happen in response to an employee’s social media activity.

Ohio is an “employment at will” state, which generally means that, absent an agreement stating otherwise, an employer may terminate an employee at any time, for any reason. As such, an employer may terminate an employee for their speech or conduct outside of work.

But there are some exceptions. The law protects employees from adverse employment action if it results from an employee’s disability, membership in a protected class, or attempts to unionize. If an employer would be prohibited from penalizing or terminating an employee for a circumstance in the workplace, those prohibitions extend to social media activity. For example, Title VII of the Civil Rights Act prohibits discrimination based on race, color, religion, sex, national origin, disability, or sexual orientation. Thus, an employer may not terminate an employee for posting religious views on social media. Similarly, Section 7 of the National Labor Relations Act guarantees employees the right to self-organize, form a union, and bargain collectively. Thus, terminating an employee for attempting to organize is prohibited, even if the attempt occurs on social media.

The rules are a bit more complicated with government employees, who have an added measure of protection from their employers—the First Amendment of the U.S. Constitution, which does not limit how private employers respond to otherwise unprotected social media activity by employees. The First Amendment’s protection applies to posts on social media by government employees. But the U.S. Supreme Court has determined this protection applies only when public employees are speaking as a private citizen. Generally, a public employee speaks as a private citizen when posting on a private social media account. But even then, Constitutional protection applies only to statements related to a matter of public concern or a political issue.

Because of the prevalence of social media, employers and employees should consider the possible effects of social media on their employment relationships. This article provides an overview of a nuanced area of law. You should contact an attorney with specific questions.