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SPLF Employment Blog

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Can I Get Fired for What I Post on Facebook or Twitter?

social mediaWith the ever-expanding Internet, the ease with which blogs can be created, and the number and reach of social media outlets, it’s never been easier to express yourself and literally have millions of people read what you write or see your pictures and videos. What can you do if your boss doesn’t like what you posted on the Internet and fires you? As with all things legal, it depends on the circumstances, as a recent case reveals.

Kendra Holliday lives in the St. Louis area. She worked part time in a clerical position for a nonprofit and also wrote a blog about sex. Holliday gave advice and discussed her active, unconventional sex life and posted pictures you wouldn’t normally see with your aunt’s Facebook postings, according to the Riverfront Times.

She tried to keep her blogging identity secret, but thanks to a “Twitter glitch,” it became apparent to her employer during an Internet search that Holliday blogged about sex toys and group sex. According to Holliday, someone on the nonprofit’s board of directors suggested to her boss he should do Internet searches of his employees to see what could be found.

In late April, after being employed for about a month, Holliday came to work and was told she was fired. She claimed her boss told her the company didn’t want to associate with anyone posting graphic images and erotica on the Internet. After her termination, she received a letter from her boss stating,

We simply cannot risk any possible link between our mission and the sort of photos and material that you openly share with the online public. While I know you are a good worker and an intelligent person, I hope you try to understand that our employees are held to a different standard. When it comes to private matters, such as one’s sexual explorations and preferences, our employees must keep their affairs private.

Her employer’s decision was based on policy, not the law. In most states, employers are free to fire an employee for no or any reason, as long as the decision doesn’t violate the law.

How Getting Fired Because of a Blog or Social Media Posting Could Be Illegal

What could have violated the law? If any of the following facts were true, Holliday might have had grounds for a lawsuit:

  • There was evidence that the employer became upset because Holliday wrote that she is gay or bisexual, and the employer was located in a state where it’s illegal to fire people due to their sexual preference. This action could be illegal in some states. For example, Missouri and Virginia do not have such legal protections, but Illinois, Maryland, and the District of Columbia do.
  • A male employee was also found to have objectionable material posted online but was not fired. In that case, Holliday could have a cause of action for sex discrimination.
  • The employer was a government agency. If this were true, Holliday may have a claim that her termination violated her First Amendment rights to free speech. If the employer is not a government agency, there is no First Amendment protection for employee speech.
  • Instead of discussing sex, Holliday discussed alleged discriminatory or illegal practices at work or voiced objections to discrimination in general. Here, she may have a claim for retaliation due to her objections to discrimination or have a cause of action as a whistleblower revealing illegal activities by her employer.

As it now stands, Holliday has decided not to sue her former employer.

The Internet Giveth Opportunities to Voice Your Opinion, But It May Taketh Away Your Job

Holliday is but one of many people fired as a result of Internet and social media postings. For example:

  • An African American employee of a zoo in Illinois was fired after she posted a picture of herself at work, in her work uniform, on Instagram stating, “At work serving these rude (expletive) white people.” Once word got out, irate zoo customers flooded the zoo’s Facebook page complaining of racism and demanding that she be fired, according to News 96.5.
  • The Kansas Board of Regents recently approved a new social media policy for public university employees. It allows a university’s chief executive to fire any faculty member who posts a comment on social media that could incite violence, that discloses confidential information, or that otherwise damages the university, according to Fox News.
  • A hospital employee was fired after she posted on her Facebook account disappointment that police responding to riots in Ferguson, Missouri, were using rubber bullets, not live ammunition: “If you shot a few of them the others would scatter like the cockroaches they are!!!!” reports the Louisville Courier-Journal.

Summing It Up

  • If you are a government employee, you have stronger legal protections under the First Amendment, which may protect you from discipline.
  • If you are not a government employee, generally speaking, employers are much freer to fire you for what you post on the Internet. If you use social media or the Internet to post opinions, photos, or videos that you think your boss or your employer’s owner may find to be damaging to the employer or too unconventional or controversial for their tastes, you do so at your own risk.

To protect yourself, you could take (or not take) the following actions:

  • Avoid posting anything that may be considered controversial or objectionable online.
  • Avoid posting anything work related, especially anything that may be critical of management or of your customers or that may violate any duty of confidentiality you may have. The National Labor Relations Board has stated that employees should not be disciplined if their social media postings are part of collective employee action concerning employees’ terms and conditions of employment.
  • Post your opinions and views in a way that keeps your identity secret. As Holliday found out, there are no guarantees this will work.

If you have been disciplined at work because of your internet postings, contact our office so we can discuss the situation, applicable laws, and your legal options.

 

 

 

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