Your Employer Might Not “Like” What You Post On Facebook

businessman taking selfieLet’s say you run an organization providing call center services to a major, multi-national company that is a subsidiary of Koch Industries.  Koch Industries, of course, is run by David and Charles Koch, widely known for their support of conservative and libertarian causes. 

At some point, you learn that your best-performing agent has started a blog through which articles highly critical of the Kochs and Tea Party candidates are posted on a daily basis.  Your initial reaction is to fire the agent, but you hesitate, questioning whether political comments posted on a personal blog are protected by the First Amendment.

This scenario has become all too familiar for American companies. 

It has been estimated that more than 10 million Americans now have a personal blog.  Nearly 60% of American adults have a Facebook account.  And while only 16% of Americans are on Twitter, that number continues to grow.  The bottom line is that Americans now have a platform, a way to express personal feelings, political opinions, cultural beliefs, complaints and complaints to a national and even global audience. 

All of which, of course, is protected by the First Amendment of the United States Constitution.  Or, is it?

ANYONE CAN BE FIRED

Indeed, in considering the hypothetical situation above, the company can fire the top-performing agents for those politically-motivated posts.

“Freedom of speech is protected by the First Amendment— but only where the government is concerned,” Lewis Malby told NPR’s Ari Shapiro in a recent interview.  Maltby is the author of a new book exploring rights in the work place, called Can They Do That?

“What most Americans generally don’t know is that the Constitution doesn’t apply to private corporations at all,” added Maltby. 

As he writes in the book:

“Freedom of speech isn’t the only right that disappears in the world of work.  Privacy disappears too.  If the government wants to tap your phone or read your email, it needs to have evidence that you are doing something illegal.  In most cases, it needs a court order.  But employers routinely monitor telephone calls, email, web-site visits and virtually every other type of electronic communication.”

And in the US, most states operate under the doctrine of “employment at will” under which an employee (any employee) can be fired for any reason or no reason at all.  Some employers use this power to control the lives of their employees.  Maltby cites an example whereby the Best Lock Company in Indiana fires workers for social drinking because its president believes drinking alcohol is a sin.

AGENTS DO HAVE SOME PROTECTION

Not everything an employee says in public, and especially through social media, can result in termination.  Certain employee social media activities are actually protected against employer retaliation in the U.S. 

The National Labor Relations Act (NLRA) says that employee activity is legally protected when two or more employees act together to improve their terms and conditions of employment.  These protected activities include online social media employee activity-circumstances where the employee comments about ongoing legal disputes and embarrassing workplace issues.

Writing in Inside Counsel, Heather Melick and Ethan Wall say:

“Section 7 of the NLRA affords employees with the right to discuss their wages and other terms and conditions of employment, both among themselves and with non-employees.  Employees have a protected right to seek help from third parties regarding their working conditions, including conversations with fellow employees, going to the press, speaking at a union rally and conferring with the National Labor Relations Board. 

The NLRB has determined that employees have engaged in protected activities on social media when they post comments or information about supervisory activities, employee staffing levels implicating working conditions, or an ongoing labor dispute. 

The opening hypothetical about the call center services agent is going to play itself out repeatedly in the years to come. 

People have become much too casual in how they use social media, perhaps emboldened by their misguided belief that all forms of communication are protected by the Constitution.  Employees must understand the consequences of their unbridled and unedited use of social media.  They must realize that their words and actions are being monitored. 

At the same time, managers like you have an obligation to have written guidelines advising employees of what they consider acceptable social media behavior and what will happen if those guidelines are violated! 

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