Before now, you were probably like most people, not really paying attention to your online privacy. However, all of the hubbub may have got you thinking: Can your employer take action against you for what you post online?
The answer isn’t quite as simple as a “yes” or “no.”
The First Amendment may not apply
This may seem surprising, but in general, the First Amendment does not protect you from employment termination based on social media activity. While it protects your right to free speech – which extends to comments or opinions expressed via Facebook post, tweet, snap or Instagram meme – it only protects that speech from government action. Unless you work for a public entity, you could be disciplined or fired for what you express online with impunity.
That may seem unfair, but most people misunderstand what the First Amendment does. The First Amendment prevents the federal or Maryland state government from enacting laws or taking actions against citizens for what they say or the opinions they hold. There are no such laws governing private employers.
The impact of at-will employment
You might wonder why or how this could be. It often has to do with “at-will” employment. Most private companies hire employees on an “at will” basis. This gives employers the right to fire any employee for any reason, as long as the action does not violate Title VII laws or state laws against discrimination of protected classes. In most at-will employment situations, employees do not even sign a contract, or sign one agreeing to at-will employment.
In effect, this gives employers discretion to reprimand or fire employees whose online activities they do not agree with. They could claim such activities reflect poorly on the business, violate company policies or hurt business interests.
A few exceptions
There is a silver lining here. As we discussed in March, there are a few instances in which employers could be held legally accountable for firing someone for their behavior outside of work. If you signed an employment contract or collective bargaining agreement, your employer must follow the terms of that agreement when seeking termination. That could limit its ability to fire you for social media activities, though some company policies or company handbooks could be construed as “contracts” you agreed to abide by.
As alluded to above, employers may also not discriminate or retaliate against employees based on their race, age, disability, religion, national origin, sex, sexual orientation or gender identity. If you post something online related to any of the above protected classes and suddenly find yourself out of a job, you may have a wrongful termination claim.
Finally, you cannot be retaliated against for refusing to engage in illegal online activities at the behest of your employer. Such activities might include impersonating another individual or entity, creating fake accounts, harassing individuals or companies online, or committing fraud through the internet.
All of these situations are generic examples, and are by no means exhaustive in terms of what employers may or may not do when it comes to your personal activities on Facebook, Twitter, Instagram and other social media platforms. Furthermore, no two employment cases are exactly alike. Therefore, if you suspect that your job security may be in danger due to your social media use, it is time to talk with an experienced employment lawyer.