Posting on social media has become a common way to express frustrations, comment on political and religious beliefs, find groups of like-minded individuals and professionally network. Yet, posting on social media could also put your job at risk.
That might come as a surprise given that the First Amendment protects your right to free speech, but there’s a balancing act that has to be conducted by the courts when employers try to restrict the off-duty speech of their employees. Let’s take a closer look at how these issues are analyzed so that you have a better idea of how to protect your interests, whether that means avoiding speech that could jeopardize your job or taking legal action against an employer who wrongfully disciplined you or terminated your employment based on protected speech.
Social media and the First Amendment
While the First Amendment protects your right to free speech, that right is not absolute. Instead, for your speech to be protected, it generally has to address a matter of public concern. If your statements are merely offensive or inflammatory, then there’s a chance that they’ll receive little, if any protection in the employment context.
That said, who your employer is can make a difference. For example, if you’re employed by the government, then any speech you engage in during the course of your employment or while acting in your official capacity likely won’t be protected by the First Amendment, meaning that your employer will be able to act against you based on what you say. This makes sense, since your employer will have an interest in protecting its reputation. If you’re engaging in some sort of protected activity, though, then you’ll have a layer of protection.
If you’re employed by a private employer, then you’ll likely be subjected to a social media use policy and you’ll be an employee at-will. Here, your employer can control what sort of speech you engage in at work and outside of work to a certain extent. For example, if you make after hours posts that are discriminatory in nature or that divulge confidential information, then your employer may be justified in taking an adverse employment action against you. Again, though, if you’re engaging in protected activity, such as discussing your religious beliefs, then you’ll likely be protected from any action taken by your employer.
There are other social media posts that may prove problematic for your employment. For example, if you post pictures of your vacation on social media but those pictures were taken at a time when you were supposed to be on sick leave, then your employer will likely be justified in disciplining you or terminating your employment.
What about your employer’s social media policies?
If your employer takes action against you based on a social media post, then they’ll probably try to shield their actions behind an existing social media policy. But these policies are sometimes overly broad and violate your rights. For example, restricting posts that embarrass your employer may infringe upon your right to blow the whistle when you observe illegality or other wrongdoing in the workplace. So, scrutinize your employer’s policies to see if there’s a way to legitimately attack them if they’ve led to a bad outcome for you.
What should you do if your employer acted against you based on a social media post?
If your employer took an adverse action against you because of a social media post, then you need to fully analyze the situation to see if you’re justified in taking legal action against your employer. If you’re successful, then you might secure reinstatement to your position while securing back pay and compensation for other damages.
That said, you’ll need compelling evidence to prove your case. This requires not only the gathering of favorable evidence and the anticipation of defense arguments, but also a strong understanding of the law. This is where your attorney can step in to provide you with valuable guidance and advocacy to help position you for success.