Yes, You Can Be Fired for What You Post on Social Media

George J. Ziogas

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According to an article posted by the Spiggle Law Firm (spigglelaw.com) of Arlington, Virginia, you can, in most instances, be fired for posting something your employer doesn’t like on your personal social media account or blog. Spiggle states that it’s legal in most states for an employer to fire an employee for any reason, or for no reason at all, so long as the employer doesn’t violate some provision of law in the process.

But what about freedom of speech?

The First Amendment to the U.S. Constitution reads, in pertinent part, “Congress shall make no law… abridging the freedom of speech.” “Speech” includes what you post online. Note, however, that the Constitution limits the power of government, not that of the people.

The amendment prohibits the government from restricting your right to speak freely, but doesn’t restrict the freedom of your employer, one of “the people,” to fire you based on what you say. You can say whatever you want, but there may be consequences.

One limited exception where the First Amendment may apply would be a scenario involving employees of government agencies who are fired for speaking freely. If you’re terminated from a government agency based on what you post, you may be able to make the case that your employer did violate your rights.

Whatever the situation, an aggrieved person would need to seek the advice of an attorney, or perhaps a union representative or human resources, regarding potential remedies available based on the circumstances.

Other possible exceptions to the rule

Spiggle does provide some additional scenarios in which it may be illegal, or grounds for a lawsuit, for your non-government employer to fire you based on what you post. Perhaps you live in a state that has laws prohibiting termination of employment based on sexual preference. If you were fired because you shared online that you were gay or bisexual, you could have a case for wrongful termination.

Along similar lines, you could take action against your former employer if you suspect sexual discrimination. If, for example, you’re a female who was fired for posting something similar to what a male coworker posted and that coworker wasn’t terminated, you may want to speak with an attorney, human resources, or a union representative about your options.

If you were fired because you posted information regarding potentially illegal or discriminatory activities going on in the workplace, you may have a good wrongful termination case against your former employer.

Most states have “whistleblower laws” in place that offer some protection to those who report this type of activity, although complaining about them on social media may not be considered “reporting” as defined by the various state statutes. Again, you’d need to consult with an attorney or the agency that administers your state’s whistleblower statute for advice based on your particular circumstances.

Why not just avoid the situation?

Employers have made it common practice to monitor their employees’ social media posts. Perhaps refraining from posting anything your employer might deem inappropriate or controversial would be best, even though you might not like this suggestion.

This could include content that doesn’t necessarily relate to your job or your employer. If, for example, you post information indicating you’re joining some group known to conduct violent protests and your post indicates that you’re looking forward to participating, your employer might have concerns and could fire you.

If you simply can’t resist making statements that your employer could find objectionable, you could try and post anonymously or set up a private personal social media account under a different name. This, however, doesn’t always work. There are numerous ways by which your true identity could be exposed.

If you do suspect that something unlawful or questionable is going on in your workplace, find the appropriate government agency that handles whistleblower complaints against employers and report the activity using the proper channels rather than posting it on social media.

Posting information like this on social media could not only cost you your job, but could also act as a warning to your employer to put a stop to the illicit activities before the authorities have the opportunity to investigate.

Assume your employer is monitoring your social media and blog entries and give that some consideration before posting something that your organization’s management might deem inappropriate. Even if you’re a government employee and you may, depending on the circumstances, be protected by the First Amendment, you could still be taking a risk.

At best, posts your employer may find objectionable could make things difficult for you at work and reduce or eliminate your opportunities for advancement. At worst, you could end up unemployed and involved in a lengthy and expensive lawsuit with no guarantee of winning. You may also be making it harder for yourself to find other employment. While this may seem unfair, it’s a reality in today’s workplace.

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