About your employment and your social media activity

Is there cause to worry about your job in connection with your personal internet presence? Does your employer have the right to poke into your private life by scrutinizing your social media posts? Is a supervisor’s objection to something that you posted online an example of overreach? Or is it a legitimate area of interest for an employer?

These are all vital questions for any employee who is concerned about rumors of backlash at work or worried about contacts from a company lawyer or human resources department regarding online exchanges in social media. Answering such questions requires an understanding of the nature of the medium(s) and the nature of an employer’s prerogative.

First, realize that social media posts, even those posted as “private” or “restricted,” can easily make their way into hands you did not intend them to get to. What you may have believed was personal or private can become a matter of interest to your employer who is concerned about:

• Protection of a company’s reputation
• Prevention of illegal activities that might implicate the employer as complicit by way of association
• Safeguarding of confidential information
• Limiting or prohibiting the use of company resources for potentially controversial personal online activities

The vast majority of employers in the digital age have — or should have — explicit policies regarding social media activity by employees. Initial employment agreements may contain prohibitions against:

• Disclosing trade secrets or disclosing internal matters to members of the public outside of a company
• Harassing fellow employees
• Demonstrating discrimination against fellow employees or anyone at all on the basis of age, race, religion, national origins, sex or sexual orientation
• Making threats against anyone

However, Cal. Gov. Code § 12964.5, a state law that went into effect in 2019, prohibits employers from “requiring an employee to sign a nondisparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace.” Court cases since then may not yet have fully tested the extent of this and similar legal restrictions on employers’ oversight of employees’ public discourse.

So what should you do if the employer has sent you a “cease and desist” letter regarding your Facebook or Instagram posts? What if that employer has also notified you that an investigation is underway? Seeking legal counsel early in the situation is advisable in such a case, without question. It is always better to be safe than sorry.