Off-duty social media is just as actionable as sexual harassment as on-duty misconduct

"An employer cannot be liable for what an employee posts online while off-the-clock. Personal time is personal time; it's irrelevant to the workplace." That is an 100% incorrect statement of the law, according to the 9th Circuit Court of Appeals in Okonowsky v. Garland.

Linda Okonowsky worked as a staff psychologist in a federal prison. She discovered that a lieutenant with whom she worked operated an Instagram account followed by more than 100 prison employees, which contained overtly sexist (and racist, anti-Semitic, homophobic, and transphobic) content. It also contained offensive content about the workplace and horrible content that specifically targeted her, including one about the male staff "gang banging" her.

When she complained to the prison's safety manager, he told her that she needed to "toughen up" or "get a sense of humor." It took months of complaints and escalating social-media awfulness before the prison finally took action.

Just because you only use the n-word on your personal TikTok doesn't mean your employer can't fire you for it.

Until yesterday, I had never heard of a "trad-wife" or of Lilly Gaddis.

A trad-wife is a burgeoning trend of women embracing traditional gender roles and lifestyles of the 1950s. Gaddis is an adherent of the lifestyle and promoter of its beliefs on social media.

In a viral TikTok video, Gaddis (white) used the n-word to describe her friends' husbands. Her employer quickly fired her and released a statement about her termination and upholding its values of diversity, inclusivity, respect, and equality.

Despite what he says, Elon Musk will not pay your legal bills if you’re fired for Xing

"If you were unfairly treated by your employer due to posting or liking something on this platform, we will fund your legal bill. No limit. Please let us know."

Elon Musk tweeted (xed?) that note Saturday night to his 152 million followers on his platform. Thus far it’s been liked close to 850,000 times, quoted or retweeted more than 165,000 times, and viewed nearly 130 million times.

And it's complete and total rubbish.

If you can’t beat ’em, sue ’em.

“Competition is fine, cheating is not.” That’s what Elon Musk tweeted after Twitter’s lawyer’s cease and desist letter to Mark Zuckerberg went public.

Twitter accuses Meta of engaging “in systematic, willful, and unlawful misappropriation of Twitter’s trade secrets and other intellectual property.”

The problem, however, is that according to Meta, “No one on the Threads engineering team is a former Twitter employee — that’s just not a thing.” 

Employer correctly fires employee for posting racist meme, court says

Rita Hall worked as a line supervisor at Kosei St. Mary's Corporation when she decided to post a meme of two juxtaposed photos on her personal Facebook page — one photo of a group of monkeys on and around a car, and a second photo of a group of Black people on and around a car. At least three of Hall's subordinates and coworkers filed complaints with KSM's human resources department about the racist meme, and the company subsequently terminated Hall because of it.

In her wrongful discharge lawsuit, the court of appeals had a lot to say about Hall's free speech rights at work, none of it good for the former employee or her lawsuit.

Can an employer disable online commenting to quell pro-union messaging?

There's a lot going on with the union organizing campaign at Creature Comforts Brewing Company. While the union (known as "BUG") continues to wait for the NLRB to schedule a representation election, BUG continues to accuse the brewery of illegal union busting. 

According to the BUG, the brewery (allegedly) illegally fired Spencer "Spicy" Britton, one of the union's biggest supporters. Moreover, the public and the brewery's employees can no longer express their opposition to the brewery's alleged union busting tactics by posting comments on Creature Comforts' Instagram posts. The brewery has disabled the ability to comment on all new posts since March 29.

I'd like to tell you that because the Instagram comment policy applies equally to everyone (non-employees and employees), there's nothing unlawful about it under the National Labor Relations Act. But with the current composition of the most pro-union NLRB in history and its equally pro-union general counsel, all bets are off. I'd have real concerns permitting a client to take this step under these or similar circumstances.

A eulogy for Heather Armstrong

Heather Armstrong, the "queen of the mommy bloggers" and the author of Dooce.com, is dead from an apparent suicide after a relapse in her sobriety. She was only 47 years old. She leaves behind two children and a legacy as one of the most important social media influencers ever.

In February 2002, Heather became the first person of which I'm aware to be fired for something she wrote online. One of her co-workers discovered that Heather was the author of an anonymous blog that, in part, discussed her workplace and her co-workers. Most of what she wrote was unflattering. That person anonymously reported Heather to their HR department. She was then fired because of some of the things she had written.

Tweets, honest beliefs, and terminations

@realDonaldTrump I am the VP of HR in a comp outside of philly an informal survey of our employees shows 100% AA employees voting Trump!

On July 24, 2016, Kathleen Jungclaus — the 55-year-old then-VP of HR for Waverly Heights Ltd. — tweeted the above. A couple of months later, someone anonymously notified Jungclaus's superiors of the tweet. When confronted, Jungclaus initially provided shifting explanations of the tweet's origins but ultimately admitted posting it. As a result, Waverly fired her for violating its social media policy (which she had drafted). After Waverly replaced her with someone 12 years her junior, Jungclaus sued for sex discrimination, age discrimination, retaliation, and hostile work environment.

Offensive social media posts doom airline employee’s discrimination claim

"If I were Black in America, I think I'd get down on my knees every day and thank my lucky stars that my ancestors were brought over here as slaves."

"Have you lost your cotton pickin' mind?"

"Too many [blue-eyed people] are reproducing with Brown Eyed People."

Those are three examples of Colleen Koslosky's (a former American Airlines customer service agent) Facebook posts that went viral and caused her employer to fire her.

She claimed the airline fired her because of her disability — nerve damage and edema in her leg — based on its prior denial of a reasonable accommodation. The employer, on the other hand, argued that it properly fired her after Koslosky's posts went viral, customers complained, and employees refused to work with someone they believed was "racist." 

The 3rd Circuit Court of Appeals had little difficultly affirming the dismissal of Koslosky's lawsuit.

She … claims that a male American customer service employee who was not disciplined for his social media posts disparaging Trump voters — calling them "ignorant rednecks" and "uneducated racist white people." Koslosky does not argue American management knew about her colleague's inflammatory social media posts. This is dispositive. …

As Koslosky points to no evidence of pretext, we are thus left with one conclusion: American fired her because her racially insensitive social media posts violated its policies and generated an outcry from employees and customers alike. Because this is a legitimate justification for her ouster, we are not persuaded that the company violated any law here.

This employee had no business keeping her job or winning a discrimination lawsuit. Employees are absolutely responsible for what the post on their personal social media, and need to understand that their employer can, should, and will hold them accountable when warranted. In this case, it was warranted. 

I have zero sympathy for insubordinate employees who are fired

This is how it started.

This is how it's ended (for now).

In the intervening 48 hours, Elon Musk reportedly fired dozens of Twitter employees who criticized him publicly on Twitter and privately in the company's Slack channel. The first to go was Eric Frohnhoefer, a Twitter engineer who publicly challenged Musk's knowledge of how the app's backend actually works. Other employees, like this one, took to Mastodon to challenge Musk's termination of Frohnhoefer in obscenity laced rants.

Would you fire this employee?

Over the weekend, I asked a simple question on LinkedIn: "Would you fire this employee?"

The employee in question took to LinkedIn to celebrate Elon Musk's dismantling of Blackbirds. Blackbirds was an Employee Resource Group for Black Twitter employees to support them, foster their development, and provide them a safe space within the company.

Posting about litigation (actual or potential) is a terrible idea

Until yesterday, Erin Overbey worked as an editor at The New Yorker. Shortly after her termination, Overbey took to Twitter to write about her termination. Across 35 tweets, she accuses the magazine of retaliating against her because of she had previously raised concerns over its lack of equity and inclusivity. 

While the allegations are interesting, I instead want to focus today's lens on the idea of tweeting about a matter in litigation, or reasonably expected to head in that direction. What I'm about to say holds true for employees and employers.

Is there a statute of limitations on old social media posts?

"LET ME SALUTE TO HITLER THE GREAT. He said 'i would have killed all the jews of the world, but I kept some to show the world why i killed them.'"

"F**k that Jew."

"who bothering ya!!! Let me at em! Lol if it's a Jew give me their @ and I'll do it 😂 😂 😂"

These are three examples of many recently discovered blatantly and offensively anti-Semitic tweets allegedly posted by Ismail Quran, Cleveland's "Police Officer of the Year" for 2019.

The thing is, they all pre-date Quran joining the department, and some are a decade old.

Court upholds termination of employee for off-duty Facebook posts critical of Black Lives Matter

"Black lives" matter causes segregation. Have you ever hear[d] of "white lives" matter or "[J]ewish" lives matter[?] No. Equal opportunity.

That's what Heather McVey posted to her personal Facebook account in the wake of George Floyd's murder and the ensuing Black Lives Matter protests.

An administrator of the hospital at which McVey worked as a nurse discovered her post, and, following an investigation the hospital fired her. Its stated reason was that "she posted on her social media a clearly racist dog whistle post, which was inconsistent with the vision and the mission and the core values of AtlantiCare."

Federal court holds that the NLRB doesn’t have a sense of humor

On June 6, 2019, unionized employees of Vox Media, a left-leaning digital media company, walked off the job during union contract negotiations. That same day, Ben Domenech, executive officer of FDRLST Media and publisher of The Federalist (which is the direct opposite of left-leaning), posted this tweet from his personal Twitter account: "FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine."

Following the filing of an unfair labor practice charge by someone with absolutely no relationship with FDRLST Media (employment or otherwise), the NLRB concluded that Domenech's tweet violated employees' rights to unionize or otherwise engage in protected concerted activity, agreeing with the administrative law judge that the tweet was an "obvious threat" that "working conditions would worsen or employee benefits would be jeopardized if employees attempted to unionize." 

Brewery CEO out after backlash to controversial vaccine comments

Vaccine mandates are a crime against humanity.

If you are not speaking out against them, you are a conspirator.

Those are the words Josh Stylman, the co-founder and now former CEO of Brooklyn, New York's Threes Brewing, recently shared on his personal Twitter account. He's also compared vaccine mandates to Jim Crow laws, the Nazi regime, and other historical atrocities. 

When protected concerted activity isn’t protected

Netflix has fired three marketing executives for criticizing their co-workers over Slack. According to The Hollywood Reporter, "the executives in question thought the messages were private. An insider says an employee stumbled across several months’ worth of these messages and reported it."

PLEASE, I’m freaking begging you, DO NOT use social media to determine applicants’ race and gender

Almost as long as social media has existed, employers have searched social media to dig up dirt on prospective employees. There is nothing illegal about these searches … provided you don’t use the information unlawfully. For example, to discriminate on the basis of a protected class.

If Lisa McCarrick, a former Amazon manager, wins her lawsuit against the online retailer, Amazon is going to learn this lesson the hard way.

EEOC settlement provides expensive lesson on including social media in your anti-harassment policies and training

EEOC v. Nabors Corp. Services involves serious allegations of racial harassment, including the following.

Being addressed at work by co-workers with racial slurs such as “nigger”; being exposed at work to offensive, racially derogatory social media images and material circulated by co-workers and managers; being exposed to racist graffiti, including racial slurs and derogatory drawings concerning Black persons at company facilities in and around Pleasanton, Texas; being referred to as members of the “colored crew” by employees and managers; and in some instances, being subjected to intimidation and physical threats by employees because of race, Black.

The company recently resolved this case, agreeing to pay 10 employees a total of $1,225,000 to settle the EEOC’s claims of racial harassment, race discrimination, and retaliation.

Social media accounts are not telling you the whole story about your applicants and employees

If you rely on social media to paint for you a full and complete picture about your job applicants and employees, you are going to be very disappointed.

According to a recent survey, 43% of workers use privacy settings to keep material hidden from employers, and 46% have searched for their own names and taken further measures to conceal their social media presence based on what they found.