Rules of the Road
The First Amendment of the U.S. Constitution protects us from the government interfering with our speech – meaning we can typically express opinions (even if they are offensive) without being arrested or charged with a crime. But that does not mean you can say whatever you want online without suffering consequences. It is a misconception that freedom of expression means you can say whatever you want, whenever you want. This is a myth and can lead people to post comments on social media they later regret.
Using Social Media At Work
I read an article the other day that got be thinking about social media use at work and whether employers can fire employees for doing so when it is purely for personal purposes. The short answer is it depends. “While employers have broad leeway to terminate their employees, certain forms of speech – including speech posted on social media – are protected.”
Jennifer Spencer, the author of the article, makes several important points, a few of which are discussed below First, she says that an employee should not think they can make statements on social media after work hours that they could not otherwise make during work hours. Employees can be held responsible for off-hours posts on social media.
Spencer discusses an interesting case, National Labor Relations Board. (NLRB) v Butler Medical Transport. The NLRB oversees labor issues in the workplace as does the Equal Opportunity Commission (EEOC) with respect to discrimination issues. In the Butler case, William Norvell, an employee of Butler Medical Transport, was fired for commenting on a former employee’s social media post. When the former employee posted that they thought their termination from Butler was unfair, Norvell responded, “Sorry to hear that but if you want you may think about getting a lawyer and taking them to court…you could contact the labor board too.”
Someone submitted a screenshot of the conversation and others posted their opinions. Human Resources saw the post and they fired Norvell for violating their social media policy.
The case went before the NLRB that ruled Norvell’s termination was improper under the National Labor Relations Act because he was engaging in protected, concerted activity. Because the discharge of the former employee was of potential concern to all employees, Norvell was involved in a common cause with fellow workers when the comment was made. Ultimately, the Board considered Norvell’s comment as being for the “mutual aid and protection” of other employees.
I have blogged before about these issues and pointed out that the NLRB has ruled that critical comments about an employer are protected conduct when it involves concerted activity. If the comment was an isolated statement made by one employee, then it would qualify as a “personal gripe,” which is not protected. Given that other employees commented on the post, this constitutes concerted action.
Guidance for Employees
The Jackson Spencer Law Firm provides good guidance for employees. Private companies and employers can discipline or fire an employee for what they post on social media. There are, however, a few exceptions to this rule.
- Truthful statements about working conditions, like harassment or unsafe working conditions.
- Comments that indicate your interest in joining or supporting a union.
- Messages to other co-workers suggesting that they contact a lawyer to get information about workplace rights.
- Demographic information like your race, sex, age, religious affiliation.
If you have a contract with your employer that stipulates you can only by fired for cause, you can generally enforce those provisions in court. Examples of cause might include excessive tardiness, missing work, or failing to perform your job in accordance with the contract. You also cannot be terminated for blowing the whistle on unlawful activity (like sexual harassment, discrimination, or crimes in the workplace). Moreover, employees cannot be terminated solely because of their race, national origin, gender, religion, disability, age, or pregnancy.
Some employees invoke the ethical theory of Moral Relativism to defend their right to post whatever they want on social media.
Moral relativism is the view that moral or ethical statements, which vary from person to person, are all equally valid and no one’s opinion of right and wrong is better than any others. In moral relativism, there is no ultimate standard of good or evil, so every judgment about right and wrong is purely a product of a person’s preferences and environment.
Moral relativism moves away from the notion there are fixed standards of behavior based on moral principles and toward a subjective approach to decision making. In this view, morals depend on one’s culture, religion, place, and time in which they occur.
Simply stated, the defense invoked by an employee who uses this ethical theory is: I can say anything I want because who is my employer to judge right from wrong.
Of course, we do have fixed standards of ethical behavior in our society and to violate them in the workplace could mean ending the employee-employer relationship. You know these standards if you read my blogs. Some are: honesty, integrity, trustworthiness, respect, and personal responsibility. If we look at those standards in the Norvell case, it could be asserted that Norvell should take personal responsibility for his comments given the company had a social media policy in place.
The moral of this story is to think twice before posting something on social media whether at work or outside the office. What I like to do, personally, is send myself an email with my proposed comments then sleep on it overnight. If I still feel the same way, then I would post those comments on social media. In other words, I’m trying to make sure my proposed post is not sent out of anger, revenge, or misreading the situation. That doesn’t mean you can’t be held responsible and possible be fired. It simply means you’re taking an action based on being true to yourself and that makes it an ethical action.
Good luck if you find yourself in these positions and feel free to email me with your question, using the form on my website, or direct via my email: [email protected]. I will provide a confidential response to your question.