Social Media At Work

As social media evolves and increases—perhaps, even, interferes– in our daily lives, questions arise regarding legal ramifications.  It used to be that unless some huge fluke occurred—the TV camera zeroes in on your face during a Cub’s game when you were supposed to be “sick” or at a “funeral”—you were able to keep your life outside of work, well… outside of work.  However, these days, stories pop up all the time about someone posting some commentary about their job, an opinion about a divisive political topic, or maybe just an inappropriate photo and consequently dealing with the fallout at work.  Cases like this may appear to be sheer bad luck or reflect the questionable choice of being Facebook friends with your boss, but it begs the question: what are your rights in regards to social media.  Can you be fired for posting something stupid/offensive/critical on social media?

The short answer is “Yes.”  This is not a new area.  Social media is simply a new forum for an old area concerning at-will employment.  Illinois is an at-will employment state, so most employees out there are at-will employees, meaning that they can be fired for any reason, or no reason, as long as it is not a reason prohibited by law.  Simply put, unless it regards prohibited discrimination against a protected class, you can be fired for things you post on social media.  Again this is not new.  Let’s say that you are at a holiday party and someone overhears you discussing a client, or bad-mouthing your boss, or making an offensive joke, and that person tells someone who tells someone and it eventually gets back to your boss.  Of course you can be fired for things you do outside of work.  The only thing that social media accomplishes is that it tells 300 people all at once, increasing the chances that your employer will find out.

However, since why you are fired is important for things such as unemployment insurance, firing you for cause it likely important for your employer.  According to the Unemployment Insurance website for Illinois,  a person is only eligible for unemployment if there was an “[a]cceptable reason of separtaion: No fault circumstance that leads to the termination of employment, such as a layoff or discharge.” Consequently, if you are fired for misconduct in connection with your work, you will not be eligible for unemployment.  So when does social media actually create “cause” for being fired? Again, the answer to this is mostly in behavior that would be inappropriate outside of social media such as revealing private or confidential information, being insubordinate, being insensitive to a class of people, and being unprofessional in ways that can be related to your work.

New laws in Illinois outlined in 820 ILCS 55/10 provide limited protections for personal use of social media. While it is illegal for an employer to require you to give them your password to access or otherwise demand access to any of your social media accounts, if you put anything out into the public space, an employer or prospective employer can access it.  This means that if it comes up in a general google search, it is fair game and can be used to fire you.  It is also important to understand that a personal account that is normally protected from prospective or current employer inquiry, may lose its status as “personal” if used for business purposes.   An account is only considered personal if used by the “employee exclusively for personal communications unrelated to any business purposes.” 820 ILCS 55/10 (b) (4).

Though unrelated to the content of social media, employers can put policies in place that prohibit you from using social media and the internet while at work. An employer can also monitor your usage of the internet and email.  Any protections afforded for personal social media accounts in 820 ILCS 55/10 do not extend to electronic mail.

Most of us are fairly innocuous in our use of social media.  However, the important thing to remember is that when we post something on social media, we are not sharing a confidence with a trusted friend or spouse.  We are sharing something with potentially hundreds of people, some of whom are friends, though most are only acquaintances.  The lure of social media is also your potential downfall. It has made the sharing and accessing of information a whole lot easier.

For more information on the applicable statute, click this link to 820 ILCS 55/10, or any of the above cites to take you directly to the full statute.  If you have any questions regarding employment related to social media or other topics, please give us a call.  We would be happy to discuss your situation.


Posted by: Carolina Schottland