Can an employer tell an employee what they can or cannot post on their social networking site?

I work as a nurse (through contract) at my county’s jail. It is my understanding that whatever I post on my account site, so long as it does not directly affect or deface my company, is completely none of my employer’s business. I wore a Halloween costume that was a bit sexy but nothing inappropriate was shown in the picture. However, my employer was quick to call me and tell me to take the picture off of my account site because I could get fired if I did not. The picture had nothing to do with my work, did not even mention it at all. Is this legally just?

Asked on November 2, 2011 under Employment Labor Law, Washington

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

A negative posting on social networking site may or may not be ramifications for such a discharge. The fact is that in an "at will" employment work arrangement an employer can set the terms and conditions of employment as it sees fit. This includes discharge for comments made on-line. That is unless an employee has an employment contract or union agreement that prohibits discipline for this type of activity or it violates existing company policy, or their treatment constitutes some form of actionable discrimination. The general rule is that an employee may be dismissed due to comments made on a social networking site.

That having been said, there is an exception regarding terminating an employee for such postings if the comments amounted to "protected concerted activity". Under federal labor law, an employer cannot fire a worker for such posts. In some cases it has been found that on-line comments are no different than workers gathering around the water cooler to talk about working conditions. The NLRA (National Labor Relations Act) prohibits employers from punishing employees for discussing about workplace conditions, wages or forming a union.

Based on the facts presented it's unclear just exactly what comments were made. Accordingly, it can't be determined if they were protected or not. At this point you can consult directly with an employment law attorney in your area as to your rights.


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