Yes, You Can You be Fired for Your Political Social Media Posts (Sometimes)

What workers need to know about their rights to free speech online

You can’t get on most forms of social media these days without seeing something about the upcoming election. But with so many discussions around hot-button issues such as race, religion, and equality, you may wonder if airing your opinions on social media could get you into trouble at work.

Let’s take a look at some things you should know about how your online activities could impact your job.

Freedom of Speech

Many people have the mistaken belief that the First Amendment of the U.S. Constitution affords a right to free speech that allows citizens to say whatever they like without fear of repercussions.

That’s only partially true. While the First Amendment does contain some language protecting freedom of speech, the amendment stops short of protecting all language. For example, speech that incites lawless action is generally not protected.

It’s also important to note that the First Amendment mainly pertains to the government’s role in free speech. Generally, the amendment is intended to protect people from being silenced, jailed, or otherwise punished for putting forth certain ideas.

However, the right to free speech generally does not bar companies from lawfully terminating someone who displays online behavior that may reflect poorly on the company.

On the flipside, most employers may not limit employees’ rights to discuss the terms and conditions of their employment, whether those discussions take place online, in person, or via other channels. The National Labor Relations Act protects most union and non-union employees’ rights to engage in activities or discussions that could lead to union formation.
How At-Will Employment Factors In

Many states, including Pennsylvania and New Jersey, are at-will employment states. That means that unless a narrow category of exceptions applies, employers generally have the right to terminate employees at any time, for any reason – or even for no reason at all.

In a very broad sense, that means that you could be potentially lawfully terminated because your boss doesn’t agree with your political social media posts.

However, there are many gray areas that may factor in to a situation such as this.

First, we must note that not all workers are at-will employees, including:

• Employees who are covered by a collective bargaining agreement. These workers are usually protected by special clauses that spell out permissible reasons and procedures for termination.
• Civil service workers. They may be covered by provisions that require “just cause” (usually a valid disciplinary or business reason) for termination.
• People who have signed employment contracts. They are typically bound by the terms and conditions of that contract.

Second, it’s also important to recognize that some employers may attempt to use the at-will employment doctrine to hide discriminatory or other unlawful motives.

Politics often involves discussions about hot-button issues, such as race, religion, women’s rights, etc. Many people hold very strong opinions about these topics, especially if they personally identify with them. Social media activity may sometimes illustrate differing opinions that are indicative of underlying tensions at work that could result in discrimination or hostile work environment claims.

Employers may also attempt to use at-will employment to justify a wrongful termination that was really motivated by other factors, including:

• Age
• Race
• Religion
• Gender
• National origin
• Disability
• A request for family or medical leave
• Filing a claim for workers’ compensation
• Complaints about unpaid wages or reports of unlawful conduct
• Pregnancy
• Complaints about unlawful treatment in the workplace
• Complaints about unlawful pay practices
• Discussing terms and conditions of your employment with co-workers

Contact the Murphy Law Group Now for a Free Consultation

If you believe that you’ve been unlawfully terminated, demoted, otherwise treated unfairly due to discrimination or a hostile work environment, it’s a good idea to speak to an attorney to find out about your rights under the law.

Email us at murphy@phillyemploymentlawyer.com, or call (267) 273-1054 for a free consultation.