American citizens enjoy First Amendment rights to freedom of the press and freedom of speech. However, in an employment setting, this does not mean that all of our speech is protected. The protection of the First Amendment guards against the government censoring free speech rights.
When it comes to private employers, they may set their own rules about the social media and blogging activities of their employees. For example, certain things an employee might post in a blog or on a social media site could give their employer grounds for firing the employee. This depends on the type of employment arrangement and nature of the postings. It is probably safe to say, however, that it is best practice to avoid expressing negative views of a person’s employer on the Internet.
Can My Social Media Posts Get Me Fired?
Most workers are at-will employees. This means that an employer can terminate a person’s employment for any reason. An employee can end the employment relationship as well at any time and for any reason. Of course, there are exceptions. A person’s employment cannot be dismissed for reasons that involve discrimination on prohibited grounds, whistleblowing or in retaliation for other protected activity.
Almost every employer gives a new employee an employee handbook at the beginning of their employment. A new employee is required to review and sign it. This handbook may include a specific rule or policy that addresses certain social media postings with the warning that improper social media conduct could result in the firing of the employee.
Some of the types of online communications that would be looked on unfavorably and might lead to dismissal are:
- Posting negative comments about the company for which a person works or the person’s coworkers would be viewed unfavorably. It could be grounds for termination;
- Disclosing company secrets or confidential information would be grounds for termination;
- Violation of a prohibition against using social media or blogging sites during work hours could be grounds for dismissal;
- Posting in a discriminatory manner or other inappropriate or unprofessional comments would be grounds for dismissal.
If a person has an employment contract with their employer, these types of conditions may be explicitly stated in the employment contract as well. Thus, if a person were to violate any contract terms regarding posting material on the Internet, their employment might then be terminated for breach of contract.
Also keep in mind that the list above is not exhaustive. Every employer may have somewhat different policies. If a person takes their job seriously and wants to act professionally, they would take the time to learn about their employer’s policies regarding blogging and social media use. A person’s employer may also have a discipline system in place, which might provide that a first offense could result in a warning or a write up for the conduct rather than outright dismissal.
What Types of Blogging and Social Media Activities Are Protected?
There are still certain protected topics about which a person can blog or post on social media without the fear of getting fired. Or, if a person were to be fired for engaging in this conduct, they might have grounds for a lawsuit for wrongful termination. This generally includes the following topics:
- Political Views: Some states provide protections for employees to post about their political views and affiliations without fear of getting fired from their job;
- Whistleblowing Concerns: A person cannot be fired for posting about a company’s illegal activity or any information to the effect that they are cooperating with an investigation regarding a company’s illegal activities;
- Workplace Conditions: If employees are genuinely discussing unsafe working conditions or possible actions to address unsafe conditions amongst themselves, this can be considered a protected activity.
- A person’s employer cannot fire them in retaliation for any valid concerns that they raise. However, these discussions must be engaged in with the goal of changing these working conditions. A person’s complaints about their job on social media would not qualify under this exception;
- Posts Made on Personal Time: Some states will also afford protection to employees if their posts are made on their personal pages when they are not working. However, if the content posted is illegal, this exception might not qualify.
There are a handful of potential protections for employees who post on social media, including state laws that protect employees from discrimination based on their off-duty conduct, political opinions, or religious beliefs.
Many states have enacted laws that prohibit employer access to workers’ social media accounts:
Arkansas: Arkansas law prohibits employers from suggesting that an employee should reveal their social media username and password, add the employer as a social media contact, or change his or her social media privacy settings, so employers can access the accounts;
California: California law prohibits employers from mandating or asking employees or applicants for employment to give the employer their username or password for their social media accounts. It also bans employers from requiring an employee or applicant to access their social media account with the employer present. Employers may make a reasonable request that an employee provide personal social media account information, if it is relevant to an investigation of employee misconduct;
Colorado: Colorado law bans employers from requiring an employee or job applicant to give the employer their a username, password or other means of accessing their personal accounts, unless an employer is conducting an investigation for the purpose of legal compliance;
Illinois: Illinois bans employers from demanding that employees or job applicants reveal their usernames or passwords for social networking sites. It also bans employers from forcing employees to display their social networking profiles for review;
Louisiana: Employers cannot demand that prospective or current employees reveal their username, password, or other login information, so the employer can gain access to personal social media accounts;
Maryland: Maryland does not allow employers to request or require employees to disclose their usernames or passwords for personal social media accounts. It also bans employers from taking or threatening to take disciplinary action against employees or job applicants who refuse to disclose such information;
Michigan: Michigan prohibits employers from seeking the personal Internet account information for an employee’s or applicant’s personal Internet account. This does not prohibit an employer from conducting a work-related investigation into activity on an employee’s personal Internet account;
Montana: Montana prohibits an employer from requiring or asking an employee or job applicant to disclose a username or password, access social media in the presence of the employer, or reveal information in a social media account as a condition of employment.
Thirteen other states have enacted comparable laws. If an employer in the states that have enacted these privacy protection laws should ask an employee for access to their social media accounts and then fire the employee if they do not comply, that could be illegal, retaliatory firing.
In addition, recently, the federal National Labor Relations Board (NLRB) has provided strong protection to employees. It has determined that labor laws prohibit employers from firing or disciplining employees for certain job-related posts and blogs.
Federal labor law regulates the relationship among employees, unions, and management, and it protects employees who engage in “concerted activity” to increase their pay, improve working conditions, or address other workplace issues.
Even employees who do not have a union are protected just as are employees who are union members. Employees in a non-union workplace who act collectively on workplace issues are protected from employer retaliation, such as firing. Examples of activity that would be protected would be meeting with a manager to advocate for better benefits or having a group discussion about the company’s safety record.
An activity is “concerted” only if it addresses the concerns of more than one employee. So, an employee who complains about their own performance evaluation would not be involved in concerted action.
However, an employee who complains, after consulting coworkers, that the company’s performance evaluation system unfairly penalizes certain employees is engaged in concerted action. The difference is between one employee complaining about their personal situation and a group working together to address a systemic issue.
Even if employees are clearly acting in a concerted way, they would not be protected if their actions were to go from constructive behavior to malicious or reckless action. And, again, employees who reveal company trade secrets or make threats of violent behavior, for example, would not have cause to complain if they were fired.
Can I Take Legal Action if I Have Been Fired for a Blog or Social Media Post?
If a person has been fired for something they posted on the Internet that they believe was protected speech of the type discussed above, they may have grounds for a wrongful termination lawsuit. The usual remedy for wrongful termination is an award of money damages to compensate for economic losses. A person might also seek reinstatement to their former position.
However, keep in mind that this type of lawsuit may be difficult to win, unless the person clearly participated in a protected activity, such as whistleblowing. If the person is an at-will employee who violated the employer’s social media policies as expressed in their policies and procedures manual, they may not have a particularly strong case.
If a person has an employment contract, they may have a case for breach of contract. In any event, a person would want to consider all of the factors objectively before deciding to file a lawsuit. It would be advisable to review the case with an employment lawyer.
Should I Contact an Employment Attorney If I’m in Trouble for My Blog?
If you have been fired for content that you have posted on a blog or other social media account, you should contact a local wrongful termination attorney to determine if you have grounds to bring a wrongful termination lawsuit.
An attorney can determine whether your activities were protected under the laws of your state or the federal government. An attorney can also review company policies or your employment contract to determine if any rules or terms were violated by your posts or by the employer’s actions.
