What Does the Law Say?
The National Labor Relations Board has been working on the issue of legal vs. illegal social media postings for a while and has gotten the courts to set a few precedents. Employees cannot be fired for:
- Giving a negative opinion of a manager or owner if a specific law is noted as violated
- Complaints about other co-workers’ complaints—as long as everyone was previously connected on social media and employees are actively participating, forming a kind of “opinion community" around a single view
- Passionate negative opinion about an entire company when court determines the company’s policy is too broad.
Examples of legitimate firings have included:
- Posting photos of an embarrassing accident that was not a community activity and was not under the company’s realm
- Complaints about the company’s spending habits regarding employees
- Complaining about company policies with incendiary remarks including the hope for the violent demise of a company employee.
What About Free Speech?
But aren’t opinions already protected in the U.S. under Free Speech and the First Amendment? You would think so, but in actuality the protection of Free Speech can actually only be invoked if you’re an employee of the U.S. government and/or you’re speaking against the government itself. The law says:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Explains Eugene Volokh at Encyclopedia Brittanica:
The First Amendment, however, applies only to restrictions imposed by the government, since the First and Fourteenth amendments refer only to government action. As a result, if a private employer fires an employee because of the employee’s speech, there is no First Amendment violation.
The First Amendment also does not protect from use of obscenity, fighting words, defamation, incitement to lawless action, true threats and solicitation to commit crimes.
So you can post opinions about the U.S. government, but there is no law that protects a person from the repercussions of a negative post about the company that person works for.
Hundreds of millions of users use Facebook to express their opinions every day. If a company isn’t doing so already, it should have clear, reasonable public policies about social media as part of the contract that an employee must sign upon hire. Reasonable policies might include no threatening or violent posts and no posting comments about a company’s internal activities or policies. Companies should also restrict use of company equipment.
Keep your eye on that Daniel Ray Carter Jr. story. He is appealing the case. Companies might want to adjust their social media posting policies accordingly.