We have all heard stories of people making fools of themselves on Facebook after one too many beers, and then waking up the next morning to a pink slip. Are such firings legal? Like everything in employment law, it would depend on the circumstances. For example, it would depend on your employer, the state you reside in, what was said and when it was said – just to name a few examples.
When Can You Not Be Fired for Social Media Posts?
Public employers: Many people incorrectly assume that the First Amendment gives them the right to say whatever they want online without facing any consequences. This is a false assumption because the First Amendment keeps the government from infringing upon your right to free speech. The First Amendment does not say anything about private employers. This means First Amendment protections would only be applicable for employees working for public employers. It still does not mean public workers can say whatever they want.
Off-duty conduct laws: In California and some other states, off-duty conduct laws can prevent workers from being fired for Facebook posts. Employers are barred from disciplining workers for legal activities off the clock, including social media activity.
Discussing the workplace: The National Labor Relations Act gives workers the right to discuss the workplace (in many cases). It does not matter whether they belong to a union. Workers can discuss wages, working conditions and other work-related topics amongst themselves on social media without fear of being fired. In this case, it helps to think of social media as a ‘virtual water cooler’. Important note: Never discuss anything workplace-related that is protected by a nondisclosure agreement (an NDA).
Political activity: Employers cannot ban employees from participating in political activities on social media.
These are only a few examples of when employees might be protected from termination due to social media posts. If you were recently fired for posting on social media, an employment law attorney might be able to help you find legal options.
The Los Angeles employment law attorneys at the Law Offices of Kesluk, Silverstein & Jacob can help workers hurt by wrongful termination.