By: Lisanne L. Mikula, Esquire

[email protected]

Many employees are surprised to learn that an employer, with certain exceptions, can legally fire an employee based on the employee’s off-duty posts on Facebook, Instagram, Twitter or other social media outlets.

The Constitution protects an individual’s right to free speech only from interference or punishment by the government.  It does not prohibit a private citizen or entity from interfering with or punishing speech.  Therefore, when a private employer prohibits an employee from engaging in certain speech or disciplines an employee because of the employee’s off-duty speech, the employee cannot bring a claim for a violation of the employee’s constitutional right to free speech. 

On the other hand, governmental employers do have an obligation to consider an employee’s constitutional rights when making employment decisions based on an employee’s off-duty speech.   Even in the public sector, however, discipline based on an employee’s speech might not violate the employee’s constitutional rights.  It is only where the employee is speaking as a private citizen regarding a matter of public concern that an employee might have a constitutional right to free speech.  Even then, the employee’s free speech rights must be balanced against the governmental  employer’s interest in efficiently fulfilling its public services, which includes  maintaining good relationships among its work force.

Even where an employee does not have a protectible constitutional right to free speech, there are other restrictions which may limit an employer’s right to discipline an employee for off-duty speech.  For example, an employer may not apply its rules regarding off-duty speech in a way which is discriminatory.  Proving discrimination, however, is fact-dependent and can be difficult to prove, particularly in the absence of examples of other employees who have engaged in similar speech without repercussions.

Employers also cannot discipline employees for engaging in certain communications regarding wages and work conditions which constitute concerted activity under the National Labor Relations Act (NLRA).  However, protections under the NLRA are not available to employees who post social media content that is egregiously offensive, knowingly and maliciously false, or that publicly disparages an employer’s products or services if that social media  content is not made in relation to group activity among employees. 

Employers may also be limited in disciplining an employee who uses social media to truthfully expose an employer’s improper or illegal activity, as federal or state whistleblowing laws might protect the employee’s communications.

The Law Firm of DiOrio & Sereni, LLP is a full-service law firm in Media, Delaware County, Pennsylvania. We strive to help people, businesses and institutions throughout Southeastern Pennsylvania solve legal problems – and even prevent legal problems before they occur.  To learn more about the full range of our specific practice areas, please visit www.dioriosereni.com or contact Lisanne L. Mikula, Esquire at 610-565-5700 or at [email protected].

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