Can my employer discipline me for what I say on social media?

Michael Ellement

As more Americans use social media as a major communication tool, the risk that what you say online will draw your employer's attention has increased. In the last several years, many employees have been disciplined or fired for their social media posts.

In general, employers have the power to fire employees for any lawful reason-including for what they post on social media. But, there are a number of protections that may be available to an employee facing discipline for their postings. These include laws prohibiting discrimination and retaliation, and laws protecting whistleblowers and employees who complain about workplace conditions.

This article discusses some of the protections available to employees, and how our firm analyzes cases where a client has been disciplined for their social media use. However, every case is different and this area of law continues to change, so you should consult with an attorney to assess your own legal options.

When did you post? (Working Time vs. Non-Working Time)

The first question to consider is when did you make the post: At work while you were supposed to be working? While you were on a break? Outside of working hours?

In general, employees have a greater amount of speech rights when they are outside of work. While you are working, your employer has a right to demand your attention, and therefore has an interest in limiting your personal social media use. For this reason, it is important that employees be conscious of the risks associated with posting on their personal social media accounts during working hours.

When you are not working, your employer has less of an interest in regulating your speech. But your employer may still discipline you for things you post outside of work, depending on what you say.

In one infamous example, a PR Executive on vacation posted on her personal Twitter before boarding her flight to South Africa: "Going to Africa. Hope I don't get AIDS. Just kidding. I'm white!" She was promptly terminated.

It is also worth noting that making your profile or posts "private" will likely not save you from discipline. Courts have generally held that you lack an expectation of privacy for what you post on public forums like Facebook and Twitter, so even if you intend to keep posts private, someone may share the post with your employer and you may be subject to discipline.

What did you post?

Legal protections for employee speech are strongest where the employee is speaking truthfully about working conditions, for example discussing:

  • Pay rates and pay disparity
  • Vacation time issues
  • Harassment at work
  • Whether or not to join a union
  • Unsafe working conditions
  • Illegal activity by your employer
  • Supporting workers who have been disciplined by the employer

In contrast, employees have less protections when they make misleading claims about their employer or its products.

The difference here can be seen in a case involving two employees at an ambulance company:

The first employee posted on a colleague's Facebook page that he was "sorry to hear" that she had been fired and that she "may think about getting a lawyer." The National Labor Relations Board (NLRB) found this post protected because it was aimed at improving working conditions by expressing support for and encouraging the employee to consider legal representation. Therefore, the NLRB held the employer violated the law when it fired the employee for his post.

A second employee at the ambulance company posted on his own Facebook page suggesting that one of the company's ambulances was broken down and unsafe. The company investigated the matter and found that the ambulance was not broken down. The company fired the employee, and the NLRB upheld the firing because it found that the employee's untrue statements about the employer's ambulance were unprotected.

Employees also generally lack protection when discussing matters unrelated to work, such as personal views on topics in the news. For example, CBS fired an employee for posting that she had no sympathy for the victims of a mass shooting at a country music concert in Las Vegas because "country music fans are often republican gun toters."

Some states have enacted laws that prohibit political discrimination, which could apply to protect employees who voice their political views on social media. Whether these protections apply will depend on what state the employee works.

Employers may also discipline employees for overly offensive speech that inhibits the employer's ability to comply with laws against discrimination. For example, Google recently fired an employee for stating on an internal messaging platform that women are underrepresented in tech because of inherent biological differences between men and women. The employee brought a claim with the NLRB, which dismissed the claim reasoning that the employee's speech was unprotected because of its offensive nature and because Google had a responsibility to protect its female employees from a hostile work environment where sex discrimination is tolerated.

What about my First Amendment rights?

You may be asking, what about the First Amendment - I thought that protected my right to freedom of speech? The Constitution only protects against government action, and so the First Amendment is unlikely to protect you if you are employed by a private company. However, if you work for a government employer, the First Amendment may offer you limited protections.

Generally, the government may not discipline employees when they speak on their own time, in their private capacity, on "matters of public concern." Unfortunately, a number of court decisions have restricted this right by limiting the topics that are considered "matters of public concern," and by creating exceptions to First Amendment protections, such as limiting employee speech that causes disruption to the workplace.

Are you being disciplined for other reasons?

A common tactic by employers is to claim they are disciplining an employee for a lawful purpose, while in fact disciplining them for an unlawful reason. Thus, if your employer disciplines you and claims it is because of something you wrote on social media, but you can prove it is because of some other unlawful reason, you may have legal recourse. Unlawful reasons might include disciplining you:

  • Because of your race, national origin, sex, disability, or other protect class
  • In retaliation for complaining about workplace safety, illegal actions by your employer, or harassment
  • As punishment for exercising a legal right, such as applying for Family Medical Leave

Check Your Employment Agreement and Employee Handbook

When you start a new job, you are often given a large stack of papers from HR. Because you have to begin work, the documents are often ignored and pushed to the back of your desk drawer. But these papers often contain important rules about workplace polices, including social media use. You should review these policies-preferably before making any posts on social media, but certainly if you have been disciplined for social media posts.

Many company's social media policies are overly restrictive, and limit your ability to post on social media. As we mention above, employers have a lot of leeway in regulating employees' postings, particularly ones made at work. However, an employers' social media policy is unlawful if it restricts an employee's right to speak on workplace conditions, such as rate of pay or harassment in the office, or prohibits employees from whistleblowing about a company's illegal activities.

Your employee handbook may also include protections for what you post online. For example, many employee handbooks contain anti-retaliation provisions wherein the employer promises not to discipline employees for reporting workplace harassment, which could include online posts about harassment or other whistleblowing activities. When our firm meets with clients, we often review employee handbooks to determine if added workplace protections may exist.

Next Steps

Whether your employer can fire you for what you post on social media is not always a simple question. While employers are able to fire employees for their posts in many circumstances, employees do have a number of protections.

If a client comes to our office after being disciplined for social media use, we navigate them through the difficult and evolving area of law, and discuss with them their legal rights. This will include reviewing what they posted and when, what workplace policies the employer has in place, possible pretextual reasons for the discipline, and how other employees have been treated for their social media use.

If you have been disciplined for social media use and would like to speak to a Bernabei & Kabat attorney, contact our office at (202) 745-1942 or fill out the online intake form here.

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