Many people mistakenly believe that the First Amendment to the United States Constitution guarantees their right to free speech under any and all circumstances. The First Amendment actually states:
“Congress shall make no law . . . abridging the freedom of speech . . .”
Originally, this law was created to allow for political discourse and dissent. People could not be arrested for disagreeing with elected leaders or the government, and this remains the case today. So, while free speech is protected from government action, an employee’s rights are more limited with regard to their employer. In most circumstances, it is acceptable and legal for an employer to take action against an employee for something he or she said or wrote on his or her own social media page on his or her own time.
Specifically, when faced with off-duty conduct situations, it is important to make the distinction between lawful and unlawful off-duty conduct. If the conduct in question is lawful, an employer may not be able to do anything about it, and some laws expressly prohibit employers from discriminating against employees for engaging in lawful off-duty conduct.
However, if you can show that the employee’s off-duty conduct hurts the way he or she does his or her job or reflects negatively on the business, you may be able to address it. For example, if an employee of a conservative consulting firm actively supports a liberal candidate on the employee’s personal social media pages, the employer may be able to terminate the employee for these perfectly lawful activities. Keep in mind, though, that the National Labor Relations Act does put some restrictions on employers with respect to stifling or prohibiting protected concerted activity, which may include political statements. Employers should be extremely careful when crafting such prohibitions and when taking action based upon such conduct.
What if the Employer is the Federal Government?
Employees of the federal government have broader free speech protections than those who work in the private sector, however they may still face discipline for certain online work-related speech. If an issue that is being discussed on social media is of public concern, like some breaking news, then speech about this subject by a government employee is more likely to be protected. If the response is extreme, in the eyes of the employer, then maybe not.
A government employee may face termination for public statements that suggest that their employer is incapable of competently fulfilling its mission. This could be seen as a damaging statement that could harm public trust and so while not unlawful, would not be protected speech.
Can Actions Rather Than Words be Considered Enough for Termination?
Yes, they might. One example is the now infamous photograph of a woman on her bike who expressed her dislike of the president with an impolite hand gesture as the presidential motorcade drove past on its way to Washington, D.C.
Juli Briskman was riding her bike as the string of cars carrying the president passed her leaving Trump National Golf Course in Sterling, Virginia. She was captured giving the motorcade a one-finger salute. The photo’s appearance on social media led to her losing her job.
The photograph went viral on the internet and Briskman’s employer, federal contractor Akima LLC, forced the 50-year-old mother of two to resign, claiming she violated the company’s social media policy. She filed a wrongful termination lawsuit against Akima claiming the company fired her fearing government retaliation. The suit has since been dismissed and Briskman will not appeal.
Have More Questions About Protected Out-of-Office Speech?
Contact the professionals at Simon Pascal, PLLC. We specialize in business and in employment law and are prepared to answer your questions. The lawyers at Simon Pascal are business owners, so we not only understand what it takes to operate a business effectively and legally. Call us today.