Can You Be Fired for a Facebook Post?
You can be fired for online postings, even when accessing the Internet from home. Learn about the federal and state laws that may protect you.
Today’s topic: Can you be fired for Facebook posts?
And now, your daily dose of legalese: This article does not create an attorney-client relationship with any reader. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.
Can You Be Fired for Facebook Comments?
The other day I received an email asking: “What are the grounds for firing someone based on what they say publicly; specifically on social networking sites? Is freedom of speech guaranteed in the workplace?” The question came from somebody who is evidently very concerned about liability for online comments. In fact, the email is signed “John Doe.” Well, John (or whatever your name is), the quick answer is that employers have very broad powers to discipline or fire employees for what they say online, whether on social networking sites, blogs, or other online forums. As I’ll explain in a minute, there are some limited protections for online activities, but for the most part, this is not an issue of “free speech.”
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Does the Employer Need “Grounds” To Fire You?
Let me start by clearing up a couple misconceptions. First, John’s question assumes that an employer must have “grounds” to fire an employee for social networking comments. That’s not necessarily true. As I explained in an earlier article, if you’re what’s known as an “at-will” employee, then either you or your employer can terminate the relationship for any reason whatsoever. Thus, an employer generally doesn’t have to justify the dismissal of an at-will employee.
Can Your Work Contract Forbid Posting on Facebook?
The alternative to an at-will relationship is one where the conditions for terminating employment are subject to a contract. In those situations, of course, it will depend on what the contract says. For example, the contract may forbid the employee from disclosing trade secrets to people outside the firm. So, if you decide to tell all your Facebook friends about your company’s secret plan to beat the competition, you might want to think about pursuing other opportunities. Perhaps even with the competition. Unless you signed a non-competition agreement, of course.
Unless you work for the government, blogging about your employer is not protected by the First Amendment.
Does the First Amendment Protect Free Speech on Blogs or Facebook?
Another misconception is that employee blogging is a matter of free speech under the First Amendment. The First Amendment prevents the government from restricting free expression; it does not apply to private employers. If you work for the government, however, you might have a First Amendment right to blog about what goes on at the office. I, for one, would love to know.
Protection for Lawful Off-Duty Conduct
For those in the private sector, there are some laws that may protect you from retaliation for online activity, but such laws vary from state to state. Some states have laws that generally protect employees from retaliation for lawful off-duty conduct. California, for example, has a law protecting employees from “demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employer’s premises.” I’m not aware of any court that has applied such a law to social networking or blogging, but on its face, the California law would seem to protect lawful online activity.
What Kinds of Online Content Can You Legally Post?
Various laws may also offer protection for posting certain kinds of content online. These include:
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Political opinions. Some states have laws prohibiting employers from disciplining or firing employees for political activities; thus, you may be protected from online comments in support of a particular candidate or party.
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Information about illegal activities. Federal and state law contains protections for “whistleblowers,” that is, employees who expose harmful or illegal activities of their employers. Some whistleblower laws may require that you report the problem to the government first–say, to a regulatory or law enforcement agency. But once that is done, you may be able to post about your discovery without fear of retaliation.
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“Concerted” Speech. Federal and state labor laws generally protect employees’ rights to communicate with each other about conditions in the workplace–and to communicate about efforts to unionize the workplace. Last year, the National Labor Relations Board brought a complaint against a company for firing an employee due to Facebook posts about her treatment by her supervisor.
As in many areas of life, a little common sense goes a long way. It may be better to talk to your manager or your HR department about problems at the office rather than broadcasting them on the Internet. You should avoid posting anything that’s offensive, or hurtful, or just plain bad taste. Instead, try posting thoughtful and witty comments to Legal Lad’s Facebook page!
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About the Author
Adam Freedman is a lawyer and a regular contributor to Point of Law and Ricochet. Freedman’s legal commentary has been featured in The New York Times, the Minneapolis Star-Tribune, and on Public Radio. He holds degrees from Yale, Oxford, and the University of Chicago. He is the author of The Naked Constitution (2012).