Making social media content at work could cost you your job. And it has for some content creators. Even if you create content off the clock, you could face adverse employment action.
Here’s what influencers and content creators need to know to protect themselves.
Why Do Content Creators Get Fired?
Most adverse employment actions against influencers and content creators fall under five categories:
- Misuse of company resources. It’s risky to develop or post content using employer property, like your work phone, or on paid time (including paid leave). You could be fired for misusing company resources; your work time counts as a company resource in most cases.
- Breach of confidentiality. Sharing company secrets can get you fired, unless your actions are protected by law (like a whistleblower statute). And beware: You can inadvertently share confidential information, like a patient’s medical information, if you film at work.
- Breach of ethical duty. If your profession has a code of ethics and your content breaches those ethics, you can be terminated. For instance, making defamatory remarks is an ethical violation in some professions. You might also face disciplinary action by your licensing board.
- Workplace harassment. Posting sexual comments about your co-worker on your personal social media, for example, might constitute workplace harassment. If so, and your employer doesn’t discipline or fire you, they could be sued by your co-worker.
- Unprofessional conduct. In general, your employer has the right to protect itself from reputational damage and workplace problems created by your content. Common reasons for getting fired include posting hate speech, threats, illegal activities, offensive or derogatory statements, and misleading claims about your employer.
Are There Any Laws That Protect Content Creators?
In the United States, most employers can lawfully fire you for any reason (or no reason) unless there’s a law that protects you. Legal protections depend on where you live and work, the size and type of organization you work for, and whether you’re in a union.
For example:
- If the termination would violate federal anti-discrimination laws (e.g., if content is related to religious expression or if the employer targets certain protected groups' social media activity differently)
- Federal and state laws may protect whistleblowers, so sharing truthful content about problems with your employer might be protected, even if it is confidential.
- The National Labor Relations Act protects some private-sector employee speech discussing workplace conditions or organizing with coworkers (protected under federal labor law)
- If the employee has a written contract or agreement that specifically addresses and protects social media content
- Union contracts may also protect some kinds of on- and off-duty conduct.
Some states, such as California or Colorado, have state laws that protect certain kinds of off-duty conduct or political action and affiliation:
- California Labor Code Section 98.6 states that employers may not discharge employees or discriminate against them for, among other activity, lawful conduct occurring during nonworking hours away from the employer's premises.
- In Colorado, the "Lawful Off-Duty Conduct Statute" protects employees from adverse employment actions based on lawful activities they engage in off the employer's premises during non-working hours, essentially meaning an employer cannot fire someone for legal activities they do on their own time outside of work.
- New York State's Labor Law Section 201-d protects employees from discrimination based on their lawful off-duty conduct. This includes activities such as political participation, using legal products, and participating in legal recreation (defined as an unpaid, leisure activity).
- In North Dakota, employers cannot discriminate against, terminate, or refuse to hire someone based on their legal activities outside of work hours and off company property, unless those activities directly conflict with the employer's business interests.
Employers in at-will employment states, like Texas, may hire or terminate employees for almost any reason, as long as that reason is not discriminatory, retaliatory, or otherwise prohibited by law. Outside of these exceptions, private employers in at-will states generally have broad discretion to make employment decisions based on employees' social media activity, even if it occurs outside of work hours.
If you have been fired (or suspect your employer is planning to fire you) the social media law attorneys at Hendershot Cowart P.C. can help you understand and assert your legal rights.
What If I Only Make Content Off the Clock?
As a general rule, employers can legally fire employees for off-duty conduct if it interferes with the company's confidential information, trade secrets, or other legitimate business interests.
For example:
- Teachers have been fired for posting sexual content to private personal media while off-duty due to concerns about morality and children.
- Posting hate speech can create a hostile work environment that your employer must respond to, even if you post off the clock.
- A derogatory or offensive post can cause serious reputational damage to your employer, regardless of when or where you post it.
What About Freedom of Speech?
The First Amendment to the U.S. Constitution prohibits the federal government from restricting speech, but it’s not absolute:
- It doesn’t apply to private-sector employers; and
- Even government employers can lawfully fire employees for some kinds of speech.
What If I Post From My Private Accounts?
There’s some value in locking down your personal accounts and auditing your privacy settings, but it won’t necessarily keep your posts private. Someone could screenshot and share your post; the fact that you originally posted to a private account isn’t likely to shield you from consequences.
How Can I Protect Myself From Adverse Employment Actions?
Here's a checklist of steps influencers and content creators should consider to protect their employment:
- Get familiar with your company handbook, including the company’s social media policy, confidentiality agreement, and code of conduct. Check if you need to disclose outside income or get approval for side activities. Some social media policies are overly broad, and a social media attorney can help you analyze your company’s policy if needed.
- Understand your credentialing or governing body’s ethical cannons. Many professional associations are updating policies to keep up with evolving social media technology and use.
- Keep current on investigations and disciplinary actions by your credentialing or governing body, especially against content creators like you.
- Research your state’s laws governing off-duty conduct.
- Keep work and content creation separate. Don't create content during work hours, and don't use company resources or equipment. Never share confidential company information.
- Don't engage in direct competition with your employer. Competing with your employer is a breach of fiduciary duty.
- Once you consistently generate income from your content, consider forming an LLC to protect personal assets.
- Consult an employment lawyer before signing employment agreements. Your attorney can highlight any provisions that restrict your content creation activities and potentially negotiate for exceptions.
If your employer fires you for content creation, or if you think they plan to, make sure to document everything that occurs. And don’t go it alone: get help from a social media law attorney.
We Are Experienced Social Media Attorneys, And We’re Here For You.
The attorneys at Hendershot Cowart P.C. understand how challenging it is to balance regular employment and content creation. We can evaluate which laws apply in your situation and make an action plan that protects your day job and your content career.