While having your parents on social media following your accounts might
be widely considered as embarrassing, having your employer or boss do
the same can be far worse. Everything you say on Facebook, Twitter, and
other popular websites and applications can come back to bite you, especially
if it directly insults your workplace or is likely to offend a large group
of people. If your boss does not like your latest post, you might get
an instant message back saying two words: “You’re fired.”
Is this allowed? Or is it a violation of your right to free speech under
the First Amendment?
For a few years now, ever since the smartphone got insanely popular and
widespread, the National Labor Relations Board (NLRB) has been bombarded
with people who wanted to know if they could be fired based on what they
say on social media accounts. The answer wasn’t initially clear
but, after handling case after case, it is clear enough now to say with
certainty that, yes,
you can be terminated for what you post on Twitter.
Social media posts that can be seen by anyone other than yourself are considered
to be created on a public forum, to some extent. Think of it this way:
if you were standing in the breakroom and talking about how much you wasted
time at work and hated your boss, you probably wouldn’t be surprised
when repercussions eventually came your way.
What About My Right to Free Speech?
By penalizing you, and even terminating you, for what you say on social
media, your employer is not infringing on your First Amendment rights
as they have not attempted to silence you. Remember: the First Amendment
protects your right to say what you want but
not from the consequences of that decision. If you were to walk into a convenience
store and tell the clerk that you had loaded your pockets with products
that you intended to steal, the police are going to arrest and search
you, regardless if you “meant it” or not. Free speech is not
the same as free from consequences.
So I Can Never Criticize My Job?
Not exactly. Employees of private businesses all have the right to “protected
concerted activity,” or discussions with fellow employees about
problems in the workplace. This means that you can set up a meeting with
your coworkers at your home on the weekend and talk about how rude your
boss is. The trouble with venting frustrations on social media is that,
once again, it is a public forum. Nonemployees of the company can see
what you have said, and therefore you are not having a discussion with
coworkers and you are not using your right to protected concerted activity.
There is Strength in Numbers
If you are truly concerned about the state affairs at your workplace and
want to share your worries on social media sites, make certain that other
coworkers are willing to join in on the discussion. If you act alone in
your venting, you can be fired alone. If you all come together in a forum
discussion or back-and-forth thread, it can constitute concerted activity.
If one or all of you are fired at that point, your employer likely has
whistleblower violation and could be in serious legal trouble for wrongful termination.
Learn more about your rights as an employee by
contacting our Atlanta employment law attorneys at Buckley Beal LLP. We have nearly a century of combined experience and
legal knowledge we can put to use investigating your claims and protecting
your rights. Call us at
(404) 471-3725 to get connected to our
employment law firm today.