Socail media, free speech, and employee rights
Can I be fired for a social media post?
Social media is everywhere, and it’s getting easier to vet frustrations or complaints about work on Facebook, Instagram, TikTok, etc. Unfortunately, employers can monitor (or can easily see) their employees’ social media accounts, and in some cases, a social media blunder can result in an employee’s termination.
The National Labor Relations Board receives thousands of complaints each year from employees who claim they were fired for their social media activity. Often, these employees want to know if it is legal for an employer to fire them over something they said online.
First Amendment rights and at-will employment
Despite employee protections, it’s important to remember that Colorado is an “employment-at-will” state, meaning that neither an employer nor an employee is required to give notice or advance notice of termination or resignation. In other words, an employer can fire an employee for any reason (or for no reason) so long as the firing isn’t discriminatory and based on the employee’s race, disability, age, sexual orientation, gender, etc.
Secondly, understand that the First Amendment doesn’t apply to private employers, in many cases. Within limits, the government may dictate what people can or cannot say, but this restriction doesn’t apply to a private company.
Protections for social media posts and content
Despite the employment-at-will status in Colorado, employees have many legal protections that limit an employer’s right to discipline or fire employees for what they post online or on social media. Especially for job-related posts, the National Labor Relations Board instituted strong protections for employees who post statements or comments about their employer, workplace, job, unfair pay, etc. Known as protected concerted activities, the National Labor Relations Act protects employees’ rights to communicate about the terms and conditions of employment. Therefore, if an employee makes a negative post about working conditions, that action may be a protected concerted activity for which the employee cannot be fired.
Other protections for online posts may include:
- Colorado Lawful Off-Duty Conduct / Employee Privacy Law — An employer cannot terminate an employee for the employee’s lawful, off-duty activities. If the employee isn’t “on the clock” and is off the workplace premises, the employer cannot fire him/her as long as his/her activities were lawful.
- Political Messages Protections — Employers cannot terminate an employee based on his/her political beliefs or views
- Retaliation — Both state and federal laws protect employees from retaliation for reporting problems in the workplace, such as discrimination, harassment, and unsafe working conditions.
When can I get fired for a social media post?
Your right to free speech doesn’t mean you can say anything you want regarding your workplace. Here are some types of social media posts that may get your terminated:
- Violating company policy or disclosing company information — Some employers may have a social media policy detailing what employees can post on social media. If you violate that policy, they may be able to terminate you. Examples might include posting confidential or proprietary information about the company or posting about something the company has done, such as land a new client, that hasn’t been approved for public release yet.
- Creating a hostile work environment — Everyone has the right to a safe work environment. So, if you post hateful or racist comments about fellow employees, that could get you fired. Making any type of threat against another employee is something else that could land you in the unemployment line.
- Lying about your employer — While there are things you have the right to discuss about your employer online, you still can’t make false or misleading statements about them. Examples might include saying a product is unsafe (when it isn’t) or posting lies about the CEO.
- Posting explicit images — Your company has the right to protect its reputation and image, so there are instances when your employer may be able to fire you for posting obscene images or videos.
- Posting about illegal activity — If you do something illegal, it’s never a good idea to make a social media post about it. Besides the possibility of the police knocking on your door, your posts can also get you fired. Again, a company has the right to protect its image and reputation.
What to do if you were fired over a social media post
If you were terminated because of a social media post or other content, you may want to contact a Colorado civil rights attorney as soon as possible. In some cases, the employer’s action could be wrongful termination. If you were fired over a social media post, call our Denver law firm today for a free, no-obligation consultation.
Call us at 720-515-6165
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