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Using social media in the legal profession – who is watching you?

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In a relatively short amount of time, social media has become ubiquitous with American life. In fact, the Pew Research Center reports that over 70% of Americans currently use at least one social media platform. As we engage in these activities day-to-day, they seem fun and harmless. We share photos, opinions, and stories about our daily lives. What we often forget, however, is that almost anyone can be watching our posts — including law firm employers, clients, opposing counsel, and literally millions of others who may have the ability to impact our career.

Don’t believe me? Well, recall the story of senior corporate executive, Justine Sacco. In 2013, she made a highly offensive tweet as she boarded a plane in New York bound for South Africa. At the time of her post, she only had 170 followers. By the time she landed on the African continent, her tweet had created viral outrage. IAC, the media conglomerate that employed her, basically announced plans to fire Ms. Sacco before she ever reached her destination. Social media comes with consequences. This week, we’re discussing how your use of social media can impact your legal career.

Looking for a job? Mind your posts

Remember when a job interview was just a job interview? Not anymore. A recent survey of 505 U.S. employers revealed the following:

  • The vast majority of employers (90%) consider a potential employee’s social media accounts when making hiring decisions; and
  • 79% have decided not to hire a candidate because of their social media content.

While the referenced survey was not particular to law firms, one can imagine how law firms might rely on social media investigations even more heavily than other professions. Imagine, for example, if an entertainment firm found posts from a candidate praising the paparazzi for stalking a movie star. Innocuous things like that can be the difference between getting a job and not.

Do not post during work hours

At times, your legal employer may be less worried about what you’re posting and more concerned about when you’re posting. If you and your boss have been having difficulties, you better believe she may begin watching your activity on social media. If she sees dozens of posts made between 8 am and 5:30 pm, you may have inadvertently given her the green light to proceed with your termination. Even if you believe your social media activity is just a ruse for some unfair reason she’s firing you, good luck convincing HR of that when she shows them screenshots of your daytime Facebook posts.

Be very careful about insulting your employer online

When it comes to insulting your boss or your employer on social media, your first instinct might be to say, “Hey! The First Amendment gives me freedom of speech! I can say what I want without being fired for it.” Not so fast, friend. Remember that the First Amendment only applies to the Federal Government so it doesn’t influence your law firm’s hiring/firing decisions unless you work for the Justice Department or some other federal agency.

Moreover, the vast majority of states have at-will employment. That means your boss can fire you for any reason or no reason at all (in fact, in most states, they don’t have to give you a reason). So, if you start mouthing off on Twitter about the managing partner’s halitosis, don’t be shocked if you’re quickly shown the door.

There’s an important exception here, however. The National Labor Relations Board (NLRB) has rules that prevent an employer from terminating an employee for engaging in “protected concerted activity.” Historically, these rules were intended to protect employees who protested working conditions outside their workplace. In modern times, however, the NLRB recognizes that social media can be a place where protected concerted activity takes place. Note, however, that the key word here is “concerted.” In order to be protected, social media posts about your workplace must be part of a larger effort to improve working conditions for everyone, not just about your own personal gripes.

Watch your posts about current events as well

Sadly, we’re living in a time where our nation is severely divided over a number of issues. Consequently, people are not shy about voicing extreme positions on the internet. If you enjoy your job with your law firm, you should think twice about making polarizing statements on social media.

In fact, the Third Circuit recently decided in favor of a bank that fired an employee who advocated violence against a group of protestors on her Facebook page. The reason the appellate court ruled in favor of the bank? Simple: the employee’s Facebook posts violated the bank’s “Code of Conduct and Social Media Policy.”

Does your firm have a policy like this in place? If so, you need to read it and adhere to it. Not only because violation of that policy may signal an end to your job, but also because any employer who takes the time to enact such a policy is probably keeping tabs on employees’ social media activity.

Don’t assume private = private

Finally, don’t assume that just because your social media accounts are not “public,” that you’re not being watched. There are plenty of methods available to bypass the protections of “private” accounts. And while your law firm may not be sneaky enough to peruse your private account, you better believe that someone you’ve offended online will screenshot and share your offensive posts. Eventually, someone will send them to your boss or make derogatory comments about your law firm based on your posts. In most states, you can be fired if your legal activity (like making a social media post) does harm to your employer’s business interests.

In the final analysis, law firm employees, like most other employees, must be extremely careful about what they post online. One possible path is to stick to posts about cute kittens and babies. To my knowledge, those things never got anyone fired.

Lindsey Dean

Lindsey Dean

Lindsey Dean leads strategic marketing and growth at InfoTrack, where she is focused on exploring and sharing concepts and ideas in accessible and nuanced ways. She has been a writer and researcher in the legal profession for more than 6 years and has authored reports and articles on eFiling, service of process, trends in the legal support field, and more.