Political discussions seem to be happening everywhere today. And, more often than not, they can get quite heated. From tense family dinner tables to disagreements with complete strangers, people are voicing their opinions - loudly.
Nowhere is this more evident than on social media. Dip even slightly into Twitter and Facebook and you'll face a torrent of political memes, opinions, and arguments. It often degenerates into shouting matches between "trolls" on both sides of the deepening divide.
Even people who do not usually "get political" seem to be drawn in, sharing posts and piling on with their opinions. Thanks to social media, we seem to be opening up and freely discussing topics, such as politics, in the public space where we might not have done so even in the recent past.
This includes the workplace, and that raises the question of whether or not an employee can be fired for political posts on social media.
Free Speech and At-Will Employment
In the United States, the First Amendment protects our right to free speech. This right, however, is often misunderstood. The First Amendment prevents the government from passing laws or taking other actions that limit free speech. It does not protect an individual citizen from losing his or her job over social media posts.
Complicating matters is the fact that generally most U.S. workers, aside from those in government jobs, have at-will employment relationships with their employers. This means that, technically, they can be let go for any reason and without warning. The employer does not have to establish "just cause" for the firing. Federal and state laws do prohibit employers from terminating workers for reasons having to do with race, religion and gender, but there is no prohibition for political speech. Unionized workers have more protections, but, again, this does not extend to their social media activity.
A Developing Area of Law for Employers, Employees Alike
Employment law has not kept up with the pace and growth of social media. As the law continues to develop, employers and employees find themselves in a game of catch up.
Over the past few years, the National Labor Relations Board (NLRB) has issued reports and guidance for employers regarding how to handle social media use by employees, and ruled on several cases. For the most part, the NLRB has taken the position that workers cannot be fired for social media posts that would be considered "protected activities." This can include complaining about working conditions, discrimination and harassment, or using social media as a means to organize or form a union. These are all legitimate activities in the eyes of the NLRB.
In one case highlighted by the NLRB, a non-profit fired five employees who posted to Facebook about a co-worker who was going to complain to management about their work performance. The NLRB ruled that this was a case of wrongful termination because the Facebook posts were "concerted activity" and constituted protected speech. On the other hand, the NLRB found that a BMW dealership was justified in firing a salesman for social media posts that painted his employer in an unflattering light. He had posted a photo of a Land Rover a customer had driven into a pond while on a test drive, as well as a photo of co-workers serving hotdogs to well-heeled customers. The NLRB found that this was not concerted activity and the firing was lawful.
According to the NLRB, workers have the right to post about an employer on social media if it would otherwise be considered a "concerted activity" by the NLRB. They may put their jobs in jeopardy, however, if their social media posts embarrass or otherwise disparage their employer. This would also likely extend to posts intended to harass or bully co-workers.
The NLRB has also made rulings regarding employer social media policies. In general, those policies cannot prohibit the same kind of concerted activities as discussed above. Employers do have the right, however, to dictate whether or not employees can use social media on the job and set other rules around posts when workers identify themselves as being employed by a specific company. In other words, employers can be within their rights to terminate an employee for violating the company's social media policy with posts and activities that are not seen as protected by the NLRB.
Think Before You Post
There are some activities on social media that should not get an employee fired, such as communicating about working conditions and wages or calling out harassment and bullying. For employees engaged in other types of speech, however, such as political discussions, there could be consequences, including termination.
So, yes, political posts on social media may lead to termination. If your post reflects poorly on your employer in a way that is not connected with working conditions, your termination may be lawful. Engaging in racist or misogynistic tirades from an account that names your employer, for example, could also be valid grounds for dismissal. Bullying or harassing others on social media who don't share your political views, especially if that includes co-workers, could also result in termination for cause. The same, of course, could be said for advocating violence - though that would also be illegal.
Simply posting that you prefer one political candidate or party over another, however, is generally not grounds for termination. You may wish to consult with an attorney regarding a potential wrongful discharge claim if you believe you were terminated for sharing your political preference on social media. If that preference bleeds into how you treat others in the workplace - however - that is another issue entirely.
The best advice for any employee when it comes to what they post on social media is to take a step back and think about the ramifications. You might be engaging in protected speech, and you might not. What you post could be putting your job in jeopardy, or at least risking negative scrutiny from your employer. Even if you don't lose your job over it, your social media history could impact your future job prospects. Today most employers routinely Google prospective hires, and what they find might determine whether or not you get the job.
Of course, the best advice is to not hit "post" on that status update you've written in anger.
Know Your Rights
It can help to know where you stand when it comes to your social media use and what your employer can and cannot do in terms of your employment. A good first step is to understand the company's social media policy. If your concerns are not addressed by doing that, consider speaking with an experienced employment lawyer who can help clarify your specific situation.
At Outten & Golden, we have a practice dedicated to the employment issues raised by technology, such as social media use. This is an issue we follow closely and will provide future updates as the law develops in this area.