Social Media

Is freedom of speech guaranteed in the workplace? Can I be fired based on something I say on facebook or another networking site?

The short answer is probably yes, you can be fired.  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 discussed below there are some limited protections for online activities, but for the most part, this is not an issue of “free speech” as protected by the First Amendment to the US Constitution.   This area of law is rapidly evolving.  This blog is only a general outline of the state of the law.  If you have a specific question please call Gienapp Law, APC at (619)-234-3054 for a free consultation.

Does the Employer Need “Grounds” To Fire You?

As I explained in an earlier post, 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.  In other words employer generally doesn’t have to justify the dismissal of an at-will employee. 

Does the First Amendment Protect Free Speech on Blogs or Facebook?

A common misconception is that employee blogging or an employee posting something about their employment on their personal facebook page is a matter of free speech under the First Amendment.  However, the First Amendment only prevents the government from restricting free expression; it does not apply to private employers.  If you work for the government you might have a First Amendment right to blog about what goes on at the office, however if you post something negative about your boss or employer and they take offense, in all likelihood than can retaliate and terminate your employment. 

Employee Protections

There may be some protections for the employee. Again the law is rapidly developing in this area. California does have a law protecting employees from “demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employer’s premises.”  This provision of the Cal Labor Code may give some protection for an employee who was blogging or posting about purely political opinions. 

Both Federal and California laws contains protections for “whistleblowers,” that is, employees who expose harmful or illegal activities of their employers.   Some whistleblower laws may require that you first report the problem; to the government, regulatory, or law enforcement agency.   But once that is done, you may be able to post about your discovery without fear of retaliation.

Federal 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.   Very recently the National Labor Relations Board heard complaints about employee terminations involving employee posts to facebook complaint about employment conditions. In some cases the termination were ruled illegal in violation of an employee's right to engage in "concerted activity" for mutual aid.  Employment attorneys around the country are watching these cases develop.  For more information on these cases click here.

As in many areas of life, a little common sense goes a long way.  I recommend avoiding posting anything relating to your employment that might be found to be offensive, hurtful, or just plain bad taste.  It is far better to talk to your manager or your HR department about problems at the office rather than broadcasting them on the Internet.  If you feel you cannot speak to your manager or HR you are always free to contact a lawyer for a confidential consultation.  If you would like a consultation please contact Gienapp Law, APC at (619)-234-3054.