How Do I Prove I Was Discriminated Against for My Social Media Activity?

Using Social Media as a Working Professional

In an age where our lives are increasingly online, the line between personal expression and professional conduct tends to blur and morph more and more. Many employees across the country wonder, “Can I be fired for my social media posts?” “Does my boss regularly check my feed?” This topic can be complex, especially because New York is an at-will state. By working with a workplace discrimination lawyer, you can learn more about the balance between personal protections and employer conduct.

How Does “At-Will Employment” Affect My Claim?

The foundation of New York employment law is the principle of at-will employment. This means that, without a specific contract stating otherwise, an employer can fire an employee at any time, for any reason, or no reason at all. As long as the reason to terminate is not illegal, you can be fired. If you are a member of a protected class, your termination could be considered illegal. An employer doesn’t need “just cause” for a termination decision. However, an employee is permitted to leave their company at any point, without prior reason.

This gives employers significant leeway. They can fire an employee for a post they simply dislike or feel reflects poorly on the company. However, this power is not absolute. The core limitation on at-will employment is that an employer cannot fire an employee for an unlawful reason, such as illegal discrimination towards their age, race, or ethnicity, or retaliation for engaging in legally protected activities. The burden falls on the employee to prove that the firing was not for a legitimate reason, but instead a pretext for an illegal one.

Can My Employer Check My Social Media?

A pivotal question for employees is whether an employer can legally monitor their personal social media accounts. As of March 12, 2024, New York Labor Law § 201-i provides significant new privacy protections for employees.

Under this law, an employer cannot request, require, or coerce you to do the following:

• Disclose your username, password, or other login information for a personal account.
• Access your personal account in the employer’s presence.
• Reproduce photos, videos, or other information from a private account.

The law also has a strong anti-retaliation provision. The law makes it illegal for an employer to fire or discipline you for refusing an unlawful request for access.

This shield has limits, however. The law does not prevent an employer from viewing or using information that is publicly available. If your social media profile is public, anything you post is fair game. This makes your privacy settings a critical tool for legal self-preservation.

When is a Post Legally Protected Activity?

Beyond privacy, the content of your post is crucial. Certain types of speech are considered protected activity, meaning you cannot be legally fired for them.

Discussing Work with Coworkers

One of the strongest protections comes from the National Labor Relations Act (NLRA), which gives employees the right to engage in “protected concerted activity” to improve working conditions. This applies to both union and non-union workplaces. Social media is often seen as a “virtual water cooler” where these protected conversations happen in private and group messaging methods.

Discussions with coworkers on social media about wages, hours, benefits, or safety concerns are generally considered a protected activity. The key is that the speech must be “concerted,” meaning it relates to group action, and not just mere griping by an individual. For example, the National Labor Relations Board (NLRB) found it was illegal to fire five employees for a Facebook conversation defending their job performance, as it was a shared response to concerns about their working conditions. In contrast, an individual rant about a bad day at work with no call for group action is likely unprotected, especially if they’re making this claim over public forms such as Instagram Stories.

Opposing Illegal Practices

Federal and state laws also protect employees who act as whistleblowers. If you use social media to report or oppose illegal conduct by your employer—such as unlawful discrimination, harassment, or safety violations—that speech may be protected. Firing an employee in retaliation for such a post is illegal in New York state.

The Line Between a Bad Post and an Illegal Firing

Often, the legality of a termination hinges on the employer’s true motive. If a social media post is used as a pretext—a cover story, if you will—for an illegal reason, the firing is unlawful.

Discrimination and Retaliation

An employer cannot use a post as an excuse for discrimination. New York law prohibits employment decisions based on protected classes like race, gender, religion, age, or sexual orientation. If a manager fires an employee for a minor violation of the employee handbook, immediately after seeing a post revealing the employee’s protected characteristic, it could be evidence of discrimination.

More frequently, these cases involve retaliation. This occurs when an employer takes adverse action against an employee for engaging in a protected activity, such as termination. The core of a retaliation claim is proving a “causal connection” between the protected act and the firing. A New York lawyer who is knowledgeable of retaliation will often point to timing as key evidence. A termination that occurs very shortly after an employer learns of a protected post creates a strong suggestion of a retaliatory motive.

Can Online Behavior Create a Hostile Work Environment?

An employee’s social media activity can create legal problems beyond their own termination. In some cases, online posts can create a hostile work environment for other employees. A hostile work environment is a form of illegal harassment where unwelcome conduct based on a protected status is so severe or pervasive that it creates an abusive workplace.

Courts now recognize that this conduct does not have to occur within the physical workplace. In one landmark case, Okonosky v. Merrick Garland, the case clarifies that employers can be held liable for social media posts made by employees that create a hostile work environment, even if those posts occur outside of the physical workplace. could support a hostile work environment claim because its impact was felt at work. The Court stated “offsite and third-party conduct [like the co-worker’s Instagram page] can have the effect of altering the working environment in an objectively severe or pervasive manner.” Once an employer is aware of online behavior creating a hostile environment, it has a legal duty to investigate and take reasonable steps to stop it.

The Role of the Employee Handbook and Policy

A company’s employee handbook and social media employee policy are important for setting expectations. However, an employee policy can also be a legal liability for the employer. A policy that is overly broad or vague may be unlawful if it could be interpreted by employees as prohibiting their right to engage in protected activity.

The NLRB has repeatedly struck down policies that prohibit “disrespectful,” “negative,” or “inappropriate” comments about the company, as this could illegally prevent employees from discussing legitimate concerns about their working conditions. A lawful policy must be narrow and specific, prohibiting things like unlawful harassment, threats, or disclosure of trade secrets, rather than general negativity. If you are fired for violating an unlawfully broad policy, the termination itself may be illegal.

How to Prove You Were Fired Over Social Media Content

If you believe you were unlawfully terminated for your social media activity, taking strategic steps is crucial to building a case.

1. Preserve All Evidence: Immediately collect and save everything related to your job and the termination. This includes taking screenshots of the relevant social media posts and comments, securing a copy of the employee handbook and any social media employee policy, and gathering all emails, performance reviews, and other communications from your employer.
2. Create a Timeline: Write down a detailed, chronological account of what happened, including dates, times, and people involved. This is critical for establishing connections between events.
3. Consult a Lawyer: Proving wrongful termination is difficult. An experienced New York retaliation lawyer is essential. They can ensure claims are filed correctly with agencies like the EEOC or NLRB before strict deadlines expire, which can be as short as 180 or 300 days. A lawyer can use legal tools to gather evidence from the employer, counter their defenses, and fight to secure remedies like back pay and other damages.

If you suspect your rights have been violated, documenting the situation and seeking expert legal advice is the most powerful step you can take!

Call a New York Wrongful Termination Lawyer Today

We at Filippatos PLLC stand in proud solidarity with working Americans in the digital space as well as physical. If you are experiencing discrimination at work due to your expression online, please give us a call at 888-9-JOBLAW for a free consultation. We will do our utmost to help secure you the justice you deserve.