Around the world, there are more than 5.4 billion social media users, and the majority use at least six platforms each month. The six most popular social media platforms are:
- TikTok
- YouTube
Social media’s popularity for staying in touch, venting frustrations, and sharing photos is undeniable. However, its expansion into the workplace can become problematic. With Shegerian Conniff’s dedication to employee rights and fair treatment, social media has the power to impact workplace discrimination cases in both positive and negative ways. Privacy is one of them.
What Are the Legalities of Social Media Use Regarding the Workplace?
California law protects an employee’s or potential employee’s social media activity. Labor Code Section 980 prohibits employers from:
- Requiring that an employee provide their username and/or password in order to access the employee’s personal social media.
- Requiring an employee to access their social media accounts in front of the employer.
- Requiring an employee to provide personal social media posts.
Your employer cannot stop you from posting about your wages, benefits, hours worked, or other employment rules and conditions. You’re allowed to share facts regarding sexual harassment you experience in the workplace. You can also share communications, such as emails, that your employer sent to you regarding political beliefs, affiliations, or political engagements or actions, such as the CEO running for senate.
That covers how you can use social media and how you’re protected. But, there are also circumstances where your employer has the right to access your social media content.
If the request is due to allegations of legal violations or misconduct, the employer has the right to ask for access or to see the alleged posts or photos. An employer cannot threaten to fire or discipline you if you do not comply, except if the reason for accessing social media is legally justified. This includes posts or photos that:
- Are made using company equipment for social media.
- Make threatening, harassing, vulgar, obscene, or discriminatory posts about a co-worker, contractor, supplier, or supervisor.
- Share proprietary information.
- Show engagement in unlawful conduct outside of work.
- Use the employer’s name, logo, trademark, etc., while seemingly speaking on their behalf.
If you do not have your permissions completely private, anything public that your employer can view without your permission is allowed. Do everything you can to make sure your posts are as private as you believe. You might have set your permissions to “friends only,” but are your friends going to forward your posts or photos? Are their settings as private as you believe? Anything you post on social media could be shared, so it’s important to limit what you share online.
California’s Ninth Circuit found that social media posts made by a co-worker on their personal account do constitute harassment. It dispelled the common belief that only actions taking place at work or a work event are actionable.
The case involved a correctional facility psychologist (Okonowsky) and a corrections lieutenant (Hellman) who occasionally worked together on handling “difficult inmates.” Hellman created a social media account and made posts containing discriminatory, harassing content that were believed to be against Okonowsky.
After filing a discrimination complaint, a judge determined that since it happened on a personal social media account, there was no valid case. She appealed, and the Ninth Circuit found that harassment that’s publicly viewable and shared does qualify as workplace harassment. That’s helped set the stage for laws that protect against online acts of discrimination and harassment in the workplace.
The Use of Social Media for Gathering Evidence
Social media is a useful tool for gathering evidence. Scouring less private X, Facebook, Instagram, Reddit, and LinkedIn accounts are all useful in finding discriminatory acts, bias, or harassment. Here are some of the ways you can find plenty of evidence to support your discrimination complaint.
- Discriminatory Intent
A company owner regularly posts jokes or cartoons about how Hispanic workers can’t read and are, therefore, perfect targets for cheating out of fair wages. Even if this isn’t currently happening at work, it does reveal a pattern of bias. It could be fuel for future wage discrimination lawsuits.
- Discriminatory Language and Harassment
Employees post comments, images, and memes that may not be offensive to them, but they could be offensive and hurtful towards other employees, contractors, and management, even if they’re made outside of work hours on a personal account.
- Evidence of Disparate Treatment
Suppose a woman gets caught taking a longer lunch than is allowed and loses her job. She sees a social media post by a male co-worker that states he took twice a long a lunch break as they were supposed to, and the boss just laughed it off. It’s proof of unfair treatment and that the boss may have terminated her for discriminatory reasons.
Challenges You Face When Using Social Media as Evidence
While it’s a great source of evidence to strengthen your case, social media isn’t without flaws. There are many reasons it’s not always the best evidence for workplace discrimination cases in California.
- Admissibility: Because AI, Photoshop, and other programs can be used to alter images, you need to prove a post is authentic and not altered in any way. It takes hard work to establish the authenticity of a social media post to ensure it’s admissible.
- Employee Awareness: You need to have clear rules in place regarding what you can and cannot access when it comes to an employees’ personal social media accounts. Make sure this information is clearly stated in an employee handbook so that no employee can argue that they didn’t realize what they were doing was against company policy.
- Employee Monitoring: California laws restrict employers from accessing a worker’s social media accounts except in limited situations. Continually monitoring a personal account isn’t always legal. You must have clear proof of the need before you do, and it can often be challenging to prove that the need came before you saw the offensive posts.
Employers Benefit from Being Proactive
Discrimination that occurs on social media is best stopped by having clear social media policies that no one can debate. Employers need to take these steps to remain proactive and stop social media discrimination and harassment.
- Create a comprehensive social media policy that’s posted in visible areas and in the employee handbook.
- Hold yearly social media awareness training sessions.
- Legally monitor social media accounts to watch for posts and comments that are violations of company policy.
- Set up a simple method for reporting violations.
Be Careful What You Share
Social media can impact California workplace discrimination cases. It’s a great avenue for collecting evidence against your employer, but it can also be detrimental. You must be very careful sharing any information regarding your complaint. You may feel it’s private and that your friends will keep it that way. The reality is that a screenshot could spread your supposedly private post outside of your close circle of friends.
Posting on sites like Reddit may seem to provide you with anonymity, but again, nothing is truly private. You mustn’t state anything on social media that you wouldn’t say to your employer’s face.
Before you do or say anything, talk to a workplace discrimination attorney. You want someone knowledgeable with California discrimination laws and the best steps to take when you have a complaint.
Shegerian Conniff has helped many California workers file successful complaints against their employers. Reach us online to schedule a free consultation.
