The short answer, generally, is yes. You don’t have an absolute right to say whatever you want without jeopardizing your employment. This is true whether you work for a governmental entity or in the private sector.
There are always exceptions. And maybe your social media post isn’t the real reason for your termination. So that’s something to think about. Further, if someone else saw your allegedly offensive post online, and sent it to your employer for the purpose of getting you fired, you might have claims against that person for what lawyers call “tortious interference with a business relationship.” Basically, that means that someone who didn’t have a right to do so interfered with your employment, and cost you your job.
As tensions in the United States have flared, people have begun venting online, often speaking without filters. You may have done this on occasion. You might have even said things that you wouldn’t normally say, and didn’t even mean. But if your employer learns about it, those posts or comments could very well get you fired.
Free-Speech Rights Differ for Private Sector and Public Sector Employees
In the private sector, employees generally don’t have a First Amendment right to free speech. That means you can’t just say whatever you want without jeopardizing your employment. This is true whether you say it using official company communications, such as work email, or whether you use your own personal profiles off the job. It doesn’t matter. The question for your employer will be whether your communications were sufficiently offensive, and sufficiently disruptive to its operations and reputation, to justify your termination.
If you are a government employee – city, county, state or federal government – you do have a First Amendment right to free speech on the job, but it has limitations. There is actually a two-part test – known as the “Pickering Test,” based on US Supreme Court decisions in Pickering v. Board of Education and Connick v. Myers – that determines the extent to which you can speak freely without jeopardizing your position. The two basic questions are, (1) Did the public employee speak on matters of public concern?, and (2) Is the value of the employees speech outweighed by the disruption it causes, or may cause, in the workplace?
Speak Freely, But Use Common Sense
Regardless of where you are employed, it’s always wise to use common sense when posting comments online, where literally everyone can see them and be affected by them. Racial slurs and other discriminatory comments are never acceptable. Nor are comments suggesting broadly and without foundation that people of a certain race, age, gender or other category should be harassed or treated unequally compared to others. Comments in these categories do not enjoy any protection, and are likely to result in discipline or termination.
Have You Been Fired or Disciplined because of an Online Post or Comment?
If so, we’d like to hear from you. We can tell you, without charge, whether your rights have been violated for exercising your right to free speech, and whether you have claims (and against whom). Please call us at 1-800-663-7999 for a free consultation.
Categories: Free Speech
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