"Free" Speech and the Workplace

Thanks to social media, people have had increased opportunities to share their personal and political views beyond their immediate circle of friends and family. As a result, there is an increase in the number of people who have come under scrutiny at work for their comments on social media about controversial topics. Sometimes those comments result in public reproval or worse, “doxxing.” That link will take you to an explanation of doxxing that also discusses whether doxxing is protected by the First Amendment. Today, I am writing about the underlying statements that might get someone “doxxed” or “cancelled,” or, specific to my expertise, fired from their job.

Although there’s been an increase in reports about it, being fired for a social media post isn’t new. In 2016, Harvard Business Review discussed whether an employee could be fired for comments made about the company where he worked, for example. In more egregious cases, employees are fired for racist, sexist, or homophobic remarks; for offensive comments about co-workers; or for praising bad actors in the news. In one case I had, an employee used Facebook to make threats against clients in her care. She claimed it was in jest. She was holding a gun in the accompanying photo.

This all sounds bad, right? But people are also fired for posting opinions others might agree with or which expose bad conditions in their workplace. When can an employer fire an employee for their social media statements?

The short answer that applies to the general workforce: An at-will employee can be fired for any lawful reason. “At will” means that the employee does not have a contract that pertains to their work, either a collective bargaining agreement or an employment contract (in reality, most employment contracts permit employees to be fired for any lawful reason). Lawful reasons include when the employer does not like the content of the employee’s speech, regardless of its political bent.

There are exceptions. Speech protected by the National Labor Relations Act, the First Amendment or a collective bargaining agreement will be less likely to subject an employee to discipline.

An employee who is sharing or discussing information with co-workers about the terms or conditions of their employment, even if it pertains to the supervisor, is usually considered to be engaging in activity protected by Section 7 of the National Labor Relations Act. An employee who wrote, “Watch out folks, Boss Baby (the supervisor) is on a rampage again! She’s denying vacation and requiring OT for everyone on the graveyard shift tonight!” would probably be protected.

A public sector employee may have a First Amendment right to speak their opinion. Remember, the First Amendment doesn’t apply to private actors like an employer; it protects an individual from state action. A public sector employer is a “state actor” so many public employees have additional protections for their statements. That protection is not unlimited, however. Rather than go into the details on this, here is how one union explains it and here is how one management side law firm explains the application for public officials (which is slightly different).

An employer who is party to a collective bargaining agreement will still need “just cause” to discipline an employee for their social media posts. Most arbitrators will expect to see that an employee’s social media posts that were made outside of work have some connection to their employment. As with other “off-duty” conduct, the employer will need to demonstrate that there was some nexus between the statements and the employee’s job.

What demonstrates a nexus? Obviously it’s very fact specific, but if the employee had their employer listed in their bio or broadcast their message to other employees, that might create a connection. So might a comment about the employer explicitly. Hypothetically, an employee who wrote, “The customers at Unspirited Inc. are all cokehead assholes. I’m sick of working there.” is probably making it clear to his followers where he works. If an employee is in their uniform in their picture (as was the employee with the gun described above) that will indicate a nexus.

But if they’re off duty why can’t they say it? Because an employer has the expectation that their employees will not bring disrepute or negative publicity to the workplace and that their employees won’t do or say things outside of work which makes it difficult for other employees to work with them. In a colleague’s case, an employee posted cartoons on social media mocking the Black Lives Matter movement and #MeToo which made his co-workers angry and unwilling to work with him. The Employer imposed a written warning and admonished the employee that his distribution of racial and gender-related memes to his co-workers even off-duty was a form of harassment. Because he felt that was an appropriate level of discipline, the arbitrator denied to grievance and upheld the discipline.

When an employee is posting things on social media while on the clock, the case is even clearer that the employee is engaging in impermissible conduct. It is incumbent on the employer, however, to have a clear social media and internet usage policy that doesn’t interfere with protected speech.

Please don’t construe my words here as legal advice. As I said, each case is different and you should consult with your union or HR representative or legal counsel when faced with a case involving off-duty social media posts.

JOB POSTING

I know this is a little odd, but I wanted to let you know that the City of Los Angeles Employee Relations Board (LA ERB) is recruiting for a new Executive Director after the passing of Najeeb Khoury. Najeeb was a wonderful person and his premature death is a huge loss to his family and colleagues. The LA ERB has always allowed its Executive Director to have an arbitration practice on the side, so if that’s something you are interested in, this position is a great way to have a job while starting your practice. I don’t have a link for the job posting, but if you message me, I can send you the flyer. It’s open until September 30.

Thanks for reading Champions of Conflict! This post is public so feel free to share it.