What to do if you are fired because of social networks
many employers, in deciding whether to hire an employee, view his accounts in social networks. And then they monitor the Internet activity of those who have already been hired. It would seem that photographs of cats or links to articles can define us as professionals, say something about working capacity or business skills? Hardly - but, unfortunately, many think otherwise.
Propaganda and morality
A couple of months ago, I was approached by a girl whose story is very similar to the story of Mary, who wrote in the community site. She did not want to talk on the phone, she referred to my other client, with whom we had long and quite successfully worked on the subject of protection against discrimination. I asked for a meeting. It is usually easier for me to first examine the documents, and only then meet with the client in order to understand the complexity of the situation and the opportunity to help, but the girl was alarmed and said that the documents as such do not exist.
Her story was very simple: they wanted to fire her. She worked in a very well-known company, was a generalist, so she had several supervisors. She had a conflict with one of them about something that had nothing to do with work. Unfortunately, the leader was vindictive and did not know how to separate work from private life. At this point, the question of raising my client. Several people claimed the position, and they were checked by the company's own security service. The employer was a man of "old school" and imposed strict requirements on this position: the applicant, among other things, had to be an exemplary family man, not to have administrative penalties, to receive recommendations from all his managers - in general, to be "ideal" in the traditional sense.
There was a problem here. My client has been living with a girl for several years and was quite active on social networks about her homosexuality: she openly expressed her opinion, posted photos in a couple, and often liked the news of the LGBT community. She did not hide anything at work, but, understanding the attitude of the leadership towards this issue, she didn’t advertise her personal life. The vengeful boss not only guessed her homosexuality, but decided to use it to his advantage. He could not affect her salary, so he decided to hinder career growth. He made it clear to the girl that he saw her page, saved the information and photos and is ready to present them to the management. Fortunately, the girl was not timid, and, having received my recommendations, she successfully repulsed and nevertheless received a promotion.
The recommendation is one here, and it is very simple: Article 3 of the Labor Code of the Russian Federation directly prohibits any discrimination, not only when dismissed, but also when applying for a job. Including information that a person belongs to any organization or community, obtained from social networks. Now, on the basis of Article 64 of the Labor Code of the Russian Federation, the employer is obliged, upon the applicant’s request, to provide him with a written answer, for what reason he was denied admission to work. And if a person was denied due to his sexual orientation, or even if he quit on his own will, but there are witnesses or other information (not only written, but oral, even the plaintiff’s testimony) who will confirm that it was the orientation that caused the refusal. , then such a dismissal or refusal to hire is illegal. The claimant may demand compensation for non-pecuniary damage, and in the event of dismissal, demand that he be reinstated at work and compensate him for the period between his dismissal and reinstatement at work.
In the case of my client, the situation was further complicated by the fact that she was accused not only of homosexuality, but also of “propaganda” to minors. Let me remind you that at the moment “propaganda of non-traditional sexual relations among minors” is prohibited by the legislation of the Russian Federation (Article 6.21 of the Administrative Code of the Russian Federation). Anyone can be under the threat of being under an unambiguously discriminatory law, but people working in schools are more scared than others. They feel their vulnerability and are often convinced that they are breaking the rules by the very fact of personal choice. Thus, they can be fired, simply intimidated, or forced to care, not to mention the actual prosecution.
The "risk group" includes people who occupy positions in the judicial system or law enforcement agencies. They may be dismissed for behavior allegedly inconsistent with status.
For example, in the city of Tambov there was an indicative situation, when a teacher of the Russian language and literature was brought to responsibility under part 6 of article 6.21 of the Code on Administrative Offenses of the Russian Federation. The case was filed because of the appeal of an anti-LGBT activist, who made screenshots of the teacher’s page with photos of same-sex couples kissing, subscriptions to groups with LGBT content and other publics whose content he did not like. Lyceum pupils who, in the applicant's opinion, had access to the content, were signed to the teacher’s page. Thus, the accused allegedly propagandized "unconventional values" to minors.
If we put aside the discussion of the most discriminatory norm that generates interference with private life and social aggression, we will try to figure out what to do if you find yourself inside such a charge and want to defend yourself. So, the fact that information about homosexual relations turned out to be or could be available to minors in itself cannot serve as a basis for bringing a person to administrative responsibility.
The Supreme Court of the Russian Federation in its definition No. 1-APG12-11 dated August 15, 2012 concluded: “propaganda” of homosexuality is “active public actions associated with the formation of an attractive image of non-traditional sexual orientation, a distorted view of the social equivalence of traditional and non-traditional marriage relations”. From a strictly legal point of view, a teacher from Tambov can be public, but not active: the teacher did not send this information to minors, but only posted it on her page for herself and for friends. Hypothetically, the teacher could close access to the page for those minors who are subscribed to her updates. Such actions would exclude one of the conditions of punishability - intent: they would show that the teacher tried to protect minors from supposedly negative impact. But in order to go so far, the teacher had to initially feel like a criminal.
And this is not all. The teacher quit before the consideration of the case, but according to clause 8 of article 81 of the Labor Code of the Russian Federation, after being prosecuted, she could be dismissed because of the immoral offense incompatible with the continuation of activities. Whether an act is immoral is determined by the employer himself, based on his own convictions - there are no criteria of immorality in the law. The risk that the employer is subjective and possesses controversial views on morality is high. But it is important to understand that even according to paragraphs 46 and 47 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”, the provision on “immoral offense” applies only to those employees for whom the educational function is the main (for example, teachers, educators of children's institutions): and they should avoid such actions both at work and at home.
The "risk group" includes people who occupy positions in the judicial system or law enforcement agencies. They can also be dismissed for behavior that allegedly does not correspond to the status. Those who belong to special subjects of an administrative offense (teachers, educators, law enforcement officers, the judiciary, prosecutors and legal professions) can be dismissed in situations that are expressly stipulated in special laws. By the way, at the dawn of my career, the judge was dismissed, who posted a photo with a bottle of alcohol on the social network page (although, for a moment, she was on vacation at that time, and the photos, according to the judge, were closed to unauthorized access). But it’s impossible to dismiss a fitter, even if he transfers his skills to an intern, for a photo in a social network with a bottle of alcohol, unlike a teacher and a judge.
"Wrong" views
Among employees of personnel departments of large organizations, it has now become popular not only to study the pages of applicants or employees, but also to “analyze” an individual based on the information collected. But the refusal of employment due to the small number of friends in the social network or even dismissal due to frivolous video using the products of your company (as in the case when the seller stepped on clothes and put it on the network) is absolutely illegal. In these situations there is not even a reason to consider them as “immoral offense”: the employee expresses his opinion, not by words, but by action.
Dismissal for "opinion" is also contrary to the Labor Code. Sometimes employers abuse their position and believe that a company can have only one social and political position. They think that they have the right to dismiss employees whose opinions differ from management. Here it is important to know your rights: they have no right to dismiss for “opinion” - the employer can only make claims about the incompatibility of his position, but then he will have to prove that you have insufficient qualifications, and not an independent point of view.
There are situations when a difference of opinion with the employer (reflected in social networks as well) does not seem to allow the employee to perform his official duties - for example, if he is a journalist and his position does not coincide with the position of the editorial board. It would seem that in this case it is easy to dismiss. But this is not the case: in order to dismiss an employee for incompatibility with his position, an employer will have to perform a whole range of actions (they are stipulated in article 81 of the Labor Code of the Russian Federation and Rostrud’s letter No. 1028-c of April 30, 2008 “On dismissal of an employee due to insufficient qualification”) practice is quite difficult to perform. For the employee, expressing an opinion, you can apply and the article on inciting hatred or ethnic hatred. But in this case it’s not dismissal, but criminal prosecution under article 282 of the Criminal Code of the Russian Federation.
If you are trying to dismiss, using the contents of social networks, assert your rights
Another case of abuse by the employer, especially prevalent in journalism, is the unofficial (and sometimes sounding) prohibition of negatively speaking out about the products offered by advertisers. Let us imagine a situation when a journalist writes a report about an event, and on a social network scolds his organization - and this causes outrage of the sponsor company.
Here it is worth paying attention to the fact that the journalist expresses his opinion when he does not fulfill his labor function, that is, literally in his free time. There is a difference between employee management and personal management, and the employee does not belong entirely to the employer. The employer must remember that he can only manage the way his subordinates perform their job duties. Often, employers try to find a loophole and prescribe some requirements in an employment contract or collective agreement. But the employee must remember that in addition to the conditions specified in article 57 of the Labor Code of the Russian Federation, only the conditions that do not worsen the position of the employee can be made in the labor contract, compared to what is written in the Labor Code itself.
From all this, the conclusion follows: if you are trying to dismiss, using the contents of social networks, defend your rights. If you are not accepted for work, ask for a written refusal with the obligatory indication of the reasons; if among them there is any information from your page on social networks - feel free to appeal. In many cases, such actions by a manager are abuse of his rights or manipulation of the Administrative and Labor Codes. Do not settle for dismissal at will, if you feel that your rights have been violated or that you are being fired for artificial reasons. If you were fired for such a reason or forced to quit, collect all the notes and recorded conversations and go to court for compensation for the period when you were unemployed and moral harm.