In many instances, yes, you can be fired for social media comments or blogging! If you have a Facebook or Mypage, or like to comment on someone else’s blog post, be careful what you write. If your employer finds that your post or comments are offensive, disparaging, or disclose proprietary business information, you may be fired.
People frequently assume that their online activities are protected by the free speech, i.e. by the First Amendment of the U.S. Constitution, which protects the rights of people to say what they want, within certain limits. However, the First Amendment, like the rest of the U.S. and State Constitutions, protect people against prosecution from government, not from private employers.
Fortunately, there are some laws that may protect your online activities. These laws vary significantly by state and should be addressed to a qualified legal counsel in your state. For example, some states have “off-duty conduct laws” or “protection for political activities laws.”
Illinois and Wisconsin, however, are “employment at will states” and have only a few laws protecting employees’ social media activities.
Are online activities protected in any way?
Whether your online activities are protected depends mostly on the subject of your writing. Typically, the same laws that protect your employment from retaliation for raising certain types of issues also protect you for blogging or commenting about those issues.
Laws prohibiting retaliation. A variety of employment laws, including wage & hour and workers compensation laws, protect employees from retaliation for disclosure of violations of their rights. For example, if your blog post or comment concerns workplace discrimination, sexual harassment, violation of the FMLA or FLSA / wage and hour violations, your employment may be protected from a disciplinary action.
Laws protecting “whistleblowers.” Several laws extend protection to whistleblowers when the public good is served by employees willing to come forward and disclose certain types of violations by their employers. Therefore, if you raise concerns about employment or public safety, illegal activities or tax violations of your employer, your employment may fall under the protection of whistleblower laws.
Laws protecting concerted activities. Under the Obama administration, the National Labor Relations Board has been very active going after employers for perceived violations of the National Labor Relations Act (NLRA) and similar state laws protecting employees’ rights to communicate with each other about their employment conditions and joining together, in a union or otherwise. For example, if your online posting or comments concern low wages, poor benefits, inadequate employment conditions, or long work hours, your employment may fall under the purview of the NLRA and you may have a claim against your employer if your employment is terminated for such comments.
You need to be careful what you post online. The legal protections listed above would not protect your employment against disparaging remarks about your supervisor or other non-protected activities. More importantly, your work performance, attendance, and attitude might be closely scrutinized as the result of your post. Your activities may alienate some of your co-workers and supervisors. A short-lived feel of vindication may lead to years of agony over your employment opportunities. Sometimes it’s easier to avoid trouble in the first place rather than testing the limits of above legal theories.
This article is intended to serve as a general summary of the issues outlined therein. While this article may include general guidance, it is not intended as, nor is it a substitute for, a qualified legal advice. Your receipt of this article from Lexern Law Group, Ltd. (the “LLG”) or any of its attorneys does not create an attorney-client relationship between you and the LLG. The opinions expressed in this articles are those of the authors of the article and does not reflect the opinion of the LLG.