Laid-Off Workers Gain Influence on Social Media, Raising Concerns for Employers

Quick Hits

• Some laid-off workers are becoming social media influencers, telling their layoff stories to thousands of followers and outsiders.
• Former employees generally are not prohibited from criticizing their former employer on social media if their comments are true and not defamatory.
• To protect their brand and public image, companies can offer severance agreements, including nondisparagement clauses, to laid-off workers.

Hundreds of thousands of employees were laid off in 2023, especially in the tech, construction, manufacturing, retail, and hospitality industries. As of July 2024, the U.S. unemployment rate was 4.3 percent, according to the U.S. Bureau of Labor Statistics.

Some of the laid-off workers utilized electronic media to position themselves as influencers with thousands of followers. They are using social media, podcasts, livestreamed videos, and blogs to discuss their layoff experiences, the job application process, their hopes for the future, and a “day in the life” of unemployment. These influencers can declare themselves #OpentoWork on their professional social media profile. They can like and comment on each other’s posts in hopes of gaining more visibility to recruiters and potential employers. Some of them have formed informal online networks to provide support, polish resumes, and trade tips about job openings and gig work.

This is much different from the past approaches following layoffs, which consisted mostly of confiding privately to friends and family.

The growing social media trend mainly involves younger millennials and Gen Zers. These facets of the employee population are far more sensitive to social media influencing and more likely to jump on board with movements to hold employers accountable for failing to reflect the needs and demands of younger workers, such as work-life balance, mental health sensitivity at work, and environmental consciousness. Layoff influencers also make it easier for labor unions to capitalize on social media to encourage organizing to assist younger workers in getting what they want from employers.

Depending on the circumstances and employment level of the employee, an employer may try to rely on written corporate policies, progressive discipline, and performance improvement plans to limit the critical public speech of an existing employee. But those avenues are generally unavailable after an employee is laid off or fired.

In general, the First Amendment of the U.S. Constitution protects private citizens’ right to criticize a company, as long as their comments don’t amount to slander or libel. In most cases, social media posts are not slander or libel if they are true.  

Next Steps

After a layoff, an employer may wish to monitor any mentions of their brand, company name, or products on various social media channels. An internal public relations team or external public relations consultant may help the employer determine whether to respond to a specific post from a former employee.

Federal and state laws apply to layoff situations. The federal Worker Adjustment and Retraining Notification (WARN) Act requires a business with one hundred or more full-time employees to either give employees sixty days’ notice in writing of a mass layoff or plant closing, or pay the employees’ wages if it fails to give the notice. In addition, many states have state versions of the WARN Act, and the compliance details can vary.

Some employers voluntarily choose to pay severance to laid-off workers in exchange for signing severance agreements. These agreements may require the workers to return the employers’ electronic equipment and not to disparage the former employer publicly. Severance pay is generally not mandatory unless stipulated in a union contract or individual employment contract.

Ogletree Deakins will continue to monitor developments and will provide updates on the Employment Law and Reductions in Force blogs as new information becomes available.

William E. Grob is a shareholder in Ogletree Deakins’ Tampa office.

This article was co-authored by Leah J. Shepherd, who is a writer in Ogletree Deakins’ Washington, D.C., office.

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