Are social media posts considered "free speech"?
"Free speech" in the employment setting is a loaded term. Private employers don't have First Amendment concerns in that there is no constitutional duty from them to allow or tolerate "free speech," but they do have to consider the National Labor Relations Act and various state laws that prohibit employers from disciplining employees for off-duty conduct.
While many of the off-duty conduct laws were drafted to address an employee's use of tobacco off the worksite, many of them are written broadly enough to encompass use of social media, blogging, or other online activities. In addition, the NLRA protects an employee's right to engage in "concerted activities" regarding the terms and conditions of employment.
Many online activities, especially something like a Facebook post regarding wages or working conditions that is shared with co-workers, are forms of "concerted activity" that are protected under the law until it reaches the point of being "disloyal" to the employer. "Disloyal" can be complicated to define, but it distinguishes between comments that are merely complaining about work from ones that actively seek to reduce business by driving customers away.
We strongly believe that social media posts should be considered “free speech,” however, there are certain aspects of social media use that should be considered within the scope of an employers’ control.
Employers should consider participating in appropriate social media venues and should put in place a social media policy to supplement an internet use policy. A few examples of specific issues which should be addressed include: clarifying infringements on company confidential information and intellectual property rights, slanderous or libelous statements that cannot be supported by evidence and are detrimental to the business, and failing to state that comments made are personal opinion and not made on behalf of the company.
2.) When can an employer legally terminate an employee for their online behavior?
This will vary from state to state, as more states are passing all-encompassing "off duty conduct" laws that prohibit, at least potentially, an employer's ability to discipline an employee for online actions. That does not mean employers are without any mechanism for regulating an employee's online activity.
First, an employer has the right to discipline employees for their online behavior during working hours; an employee is at work to do work, not to send Twitter updates, post on Facebook or maintain a blog. The one caveat to this rule is that employers must be consistent in enforcing this social media policy; an employer cannot discipline employees when they make negative comments about the company, but ignore other non-work related activity while an employee is on the clock.
Second, an employer can, and must, intervene when an employee's online actions are placing the employer at legal risk -- such as betraying confidential information, or violating the Federal Trade Commission's rules on endorsements of the company's products, or threatening or harassing a co-worker. Third, employers can act when an employee has crossed a line and acted disloyally. Complaining about your boss or your pay isn't disloyal; telling people that the hospital where you work is unsafe would be disloyal - though if there are real safety concerns raised, the employer needs to address them. In one recent case that involved a company's social media policy, the National Labor Relations Board (NLRB) filed a complaint against an employer who fired a staff member for badmouthing her supervisor on Facebook. The Facebook case was eventually settled out of court and required that the company not discipline employees who are asking for union representation; the company will also revise their employee handbook policy around workers discussing work conditions with their co-workers.
The materials available at this web site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Howard Roitman, Esq. and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.
Assuming the radio station is a private company (meaning no government ownership or control), the employer has the ability to censure employees for their speech and activities. Privacy is always a concern when posting on FaceBook, and keeping employers isolated from your personal profile is a wise action. You may wish to consult with a local state attorney to identify if any state employment law has been violated and/or if the company has deviated from its internal policies on handling such matters.
A. Will Vella is an Massachusetts licensed attorney who focuses his practice on small business, family issues, and small personal matters . This response is for general informational purposes and does not constitute legal advice. Additionally, this response does not create an attorney client relationship. If you need legal advice, please contact a lawyer in your state who practices in the appropriate area.
Locally, here in NV, the law has not developed for real clarity. However, it should be noted that several courts have ruled that personal opinions about social issues are not terminable offenses, especially when posted on social media sites with an expectation of privacy (depending on your settings). Commenting on a football team would not be a suspendable offense unless the employer clearly outlined such in a social media policy and it was violated. Unless such a comment was extremely vulgar and brought illrepute upon the employer somehow, I can't see how suspension could be supported. Now, the key issue here is 'damage', though. Were you suspended without pay? or did this harm your reputation? If not, it is not really relevant or actionable. Make sure to seek advice from a lawyer in Las Vegas.
The recommendations in this answer are not considered legal advice for the purposes of ethical, legal and practical evaluation, nor does this recommendation create a retention of counsel agreement between us, wherein an attorney-client relationship or privilege exists. These recommendations should never be relied upon without first consulting an attorney in your jurisdiction. I am not your attorney, unless we enter into a written agreement fulfilling the terms of that agreement. The comments posted herein are purely for public educational purposes and public discourse on general legal topics. I presume the specific fact scenarios are only supposition and am thus commenting for the public's benefit and understanding of law. I am not soliciting you to hire me or my law firm, though in certain jurisdictions I may be able to refer you to an attorney that can help you or may consult with you for free.