What employers and employees need to know about posting on social media.
By Vista Lyons and Nicole Herron
In this growing age of digital communication, it is not uncommon for employees to take to social media to air their grievances against their co-workers and employers. However, employees’ posts can sometimes raise concerns for their employers. As such, there is a growing concern from employers regarding how and if they are allowed to discipline their employees for social media posts.
Employers have an interest in protecting their brand and image, and as a result, they may wish to censor what employees are allowed to post on social media. But how far can employers go when censoring employees’ social media content? How far can employers go when viewing content associated with employees’ social media accounts? Finally, how can employers strike a balance between employees’ protected concerted activity versus unprotected communications. This article will address recent Texas cases concerning social media as it relates to the employer-employee relationship.
When Threats Go Wrong
The U.S. District Court for the Western District of Texas—Austin Division has made it clear that employers may discipline employees for posting threatening and intimidating content on social media. After a television reporter and cameraman were killed during a live television broadcast by a former employee of the station, another former employee of the TV station made a Facebook post referring to the need to have a conversation about mental health and gun violence.1 In response to that employee’s post, the plaintiff, Franklin Leal, wrote a post stating, “Sometimes workplaces push you to the edge to do violent crazy things the bullying in workplaces and toxic environments [sic].”2
Later the same day, Leal made another post referring to the station where he worked, stating, “To be a journalist isn’t an easy Job but when u [sic] have bullies in your workplace can be so crazy. That’s why people need to push a movement to condemn bully [sic] at work.”3 Following another employee’s post depicting a picture of members of the station with the caption, “I couldn’t imagine losing any of these wonderful people;” Leal responded with a post in Spanish that translated to “They should behave well and don’t bully.” The general manager of the television station saw Leal’s posts and deemed them threatening, as she felt they “empathized with the murderer and … suggest[ed] that violence could be warranted within a workplace.”4 Leal was informed that as a result of his posts, his employment contract would not be renewed.5 Leal subsequently made another social media post in Spanish that translated to “You’re not going to silence us and stop deleting my tweets cowards.”6 The totality of these posts, coupled with Leal’s history of conflicts with co-workers, ultimately prompted human resources to terminate his employment based on him calling the station “cowards.”7 In response, the plaintiff filed a lawsuit claiming he was discriminated against based on his Hispanic ethnicity and because he allegedly suffered a nervous breakdown from the work environment.8
The court ruled that the TV station had proven a legitimate, non-discriminatory reason for terminating Leal’s employment, given his threatening posts and attacks on the TV station via social media, which were violations of the station’s policies and the plaintiff’s employment agreement.9 Although Leal was using his personal social media account to post threatening content, he was still lawfully disciplined by his employer for his actions.
This case illustrates what recourse employers may have when one employee is making other employees feel uncomfortable. With this case, Texas courts have made it clear that employees are not free to make threats or intimidating statements about employers or co-workers even when such conduct is posted to personal social media accounts.
When Employers Go Too Far
Although Texas employers can discipline employees for threatening and intimidating conduct, Texas courts have held that employees may be able to establish claims for invasion of seclusion/invasion of privacy if employers access their Facebook messages without the employee’s consent.10 Maria Galvez, an employee for the city of Katy, alleged her employer accessed her personal Facebook messages while she was out on leave.11 After accessing the messages, the employer terminated Galvez and used the messages during a hearing with Katy City Council.12 Galvez filed suit alleging a claim for intrusion of seclusion or invasion of privacy.13 The employer moved to dismiss Galvez’s claims.14 The court held that it may have been plausible that the employer’s actions were proprietary in nature.15 However, Galvez alleged that the employer only had access to her Facebook messages because her personal Facebook page was linked to the employer’s Facebook page that she was in charge of updating.16 For these reasons, the court ruled that it was not appropriate to dismiss the plaintiff’s claims at that stage.
Although there is no subsequent history regarding this case, the court declined to dismiss the plaintiff’s claims of intrusion of seclusion or invasion of privacy, which could have resulted in liability for the employer. Employers should be aware that although they are permitted in some instances to discipline their employees for social media behavior, accessing their employees’ private social media messages could have legal consequences. As such, employers should try to take measures to avoid accessing employees’ personal social media messages, inadvertently or advertently, without the employees’ permission.
When Employees Violate Employers’ Social Media
Most employers have begun to set forth social media policy statements in employee handbooks. Establishing clear social media policies can help employers ensure employees are using social media in a way that does not damage the employer’s reputation and is not harmful to fellow employees.
The Texas Workforce Commission’s website has highlighted a number of social media issues faced by employers.17 The commission advises employers that it is a good idea to “adopt clear, written policies on computer and Internet usage and on the use of social media by employees.”18 The commission’s website provides employers with a sample social media policy that was found lawful by the National Labor Relations Board.19
In addition to the TWC, Texas courts have discussed employers’ social media policies. For example, a Northern District of Texas case in 2013 held that Virginia C. Rodriguez’s violation of her employer’s social media policy was a legitimate, non-discriminatory reason for terminating her.20 The employer’s social media policy stated that if employees decided to post complaints or criticism on social media, they were to “avoid doing so in a way that [was] unprofessional, insulting, embarrassing, untrue, [or] harmful . . .”21 After viewing pictures on Facebook of employees attending a party after they called out sick from work, Rodriguez publicly chastised the employees on Facebook.22 The human resources manager concluded that Rodriguez violated the employer’s social media policy by publicly chastising the employees.23 Rodriguez was terminated as a result of her Facebook post.24 The court concluded that because Rodriguez violated company policy the employer had established a legitimate, non-discriminatory reason for her termination.25
Although the court in this case did not expressly address the lawfulness of the employer’s social media policy, it can be inferred that the policy was valid given that Rodriguez’s termination was upheld. This case provides a good example of language that Texas courts may deem lawful in employer social media policies.
Developing Issues Regarding Employee
On December 16, 2019, the National Labor Relations Board issued a split, precedent-shifting order stating that employers do not necessarily violate the rights of employees under the National Labor Relations Act when they prohibit them from discussing workplace investigations.26 This decision essentially relates back to employers’ freedom to infringe on employees’ rights to engage in protected concerted activity. Employers and employees should still understand that employees have a right to engage in protected concerted activity. However, this decision makes it clear that employers may prohibit employees from discussing pending workplace investigations in some instances. As always, depending on who is sitting on the board, this decision is subject to change in the future.
Social media will likely continue to grow and so will issues surrounding social media activity. Employers should be aware that although they have an interest in protecting their brands and image, employees have rights regarding what they can post on social media. Employers can look to Texas cases as a guide to whether their decision to terminate an employee based on social media conduct will likely be deemed lawful. If employers are unsure about whether a decision to discipline or terminate employees due to their social media behavior is lawful, they should consult with legal counsel before making a decision.
Employers should be sure to have social media policies in place that are in accordance with the current laws and do not violate employees’ rights. The TWC and precedent Texas caselaw can be used as guides when employers are drafting social media policies. As always, employers will be best served by consulting with legal counsel to ensure social media policies are clear to employees and in accordance with current law.TBJ
serves as the office managing partner in FordHarrison’s Dallas office and is certified in labor and employment law by the Texas Board of Legal Specialization. For over 20 years, she has focused her practice on exclusively defending management in employment litigation matters, involving a broad range of state and federal statutes including claims of discrimination, wage and hour violations, whistleblower/retaliation, wrongful termination, the Employee Retirement Income Security Act, and breach of contract, among others. Lyons earned her J.D. at the University of Texas School of Law and her B.A. at Cornell University.
legal practice is devoted to assisting clients in finding innovative solutions to a broad range of employment law issues. She advises clients in all manner of workplace law matters, with a specific focus on preventing litigation through day-to-day proactive counsel on the development and administration of sound employment policies. While in law school, Herron served as a writing adviser and senior editor for the Thurgood Marshall Law Review and also as a judicial intern for the Hon. Vanessa D. Gilmore, of the U.S. District Court for the Southern District of Texas.