Attorneys examine employment law and social media

COLUMBIA, SOUTH CAROLINA – Lick the mashed potatoes at work and post a photo on Facebook – there are legal grounds to fire you. The action was not in the employer’s best interests.

Smoke a cigarette during happy hour and post that image – your job is safe. At least, it is in states that prevent companies from firing employees whose activities are legal.

Those are just two points Burnette Shutt & McDaniel’s Nekki Shutt  made recently to the National Association of Unemployment Insurance Appeals Professionals. Shutt gave a presentation about social media and causes for termination during the organization’s national convention.

Shutt is a founding partner of Burnette Shutt & McDaniel and a certified specialist in South Carolina employment law.

Social media and the workplace is a rapidly evolving area of the law. It’s one of intense interest to both employees and employers.

Overall, 43 percent of companies responding to a survey recently say they use social media to research potential employees. More than half of that 43 percent has turned up reasons to reject applicants as a result.

State employment laws vary

It’s also an area where the law can vary significantly from state to state. South Carolina, for example, specifically prevents companies from firing employees who smoke tobacco outside of work. North Carolina, Minnesota, Nevada and other states make it clear that using any legal product while off duty is not grounds for dismissal.

Workers still should be careful about what they post and how they post it.

A nurse in California was denied unemployment after a court ruled that she violated company policy prohibiting abusive language. She was fired after posting a Facebook rant about a supervisor when she had to work on her birthday.

Even in Colorado, where marijuana is legal, Dish Network fired a worker who had a prescription for medical reasons. This is because marijuana remains illegal under federal law.

Complaints about job conditions sometimes are safe. This is  particularly true if post is about a group or collective bargaining activities protected under the National Labor Relations Act. Individual gripes about a bad boss, however, can be grounds for dismissal.

Discrimination remains illegal, even when social media are involved. A restaurant can’t fire a female server for posting inappropriate pictures in uniform if they don’t dismiss male servers for doing the same.