A couple of years ago, one of my relatives, who worked (notice, my emphasis added) in a public-facing job, called and asked me if it was legal that her boss had disciplined her for a Facebook post in which my relative responded not-so-nicely to a Facebook post by a customer critical of the customer service she received at my relative’s workplace. “ABSOLUTELY (again, my emphasis added), it is legal”, I told her.
I was reminded of this scenario this past week when I read about one of my brethren in the legal industry being fired, presumably for his social media post about his participation in the demonstration and riot at the U.S Capitol.
Wow, what about their First Amendment rights?
The First Amendment may offer some protection for employees working for a public entity (e.g., state government, county government, federal government). The Fourth Circuit Court of Appeals (whose rulings apply to North Carolina employers) addressed this issue in 2017 (Grutzmacher v. Howard County, 851 F.3d 332 (4th Cir. 2017).
- In that case, a Maryland firefighter sued his employer, a county fire department, after it fired him for several of his social media posts about beating up a liberal (among other things) that the employer said violated its social media policy. The fire department said the firefighter’s social media posts, among other things, were insensitive and derogatory, demonstrated the firefighter’s insubordination, and disrupted the fire department’s operations. The firefighter sued seeking reinstatement and damages and alleging that the fire department violated his First Amendment rights.
- The Court ruled in favor of the fire department, and noted that for public employees there is a balancing test created by the U.S. Supreme Court (Pickering v. Board of Education, 391 U.S. 563 (1968)), that must be analyzed. In Pickering, the Court held that for public employees to have protection under the First Amendment, they must be: (1) speaking on a matter of public concern, (2) as a private citizen, and (3) they must prove their interest “in commenting upon matters of public concern” outweighs the “interests of the State, as an employer, in promoting the efficiency of the public services it performs through its employees”.
For employees working for a privately-owned business, however, the First Amendment does not offer protection. Simply, the First Amendment does not police what private employers can do in response to an employee’s free speech.
- First, it is important to remember that North Carolina is an “at-will” state, which means that, generally, employers can fire an employee for no reason at all or for any lawful reason, which could include an inappropriate social media post if the employer so chooses.
- Second, although there are some protections under federal law (the National Labor Relations Act) for employees who communicate on social media about their terms and conditions of employment and possibly under certain state laws prohibiting discrimination based on an employee’s political affiliations and speech (although not for employees of privately-owned businesses here in NC), posts like my relative’s or my legal colleague would not have such protection in North Carolina.
- Third, employers in the private sector in North Carolina, have far more leeway to determine how they want to manage, counsel, discipline or terminate employees who post inappropriate content (as determined by the employer) on social media. So, employees, like the attorney fired last week, should be mindful of what they post going forward.
- And, finally, all that said, now might be a good time for all employers to review their social media policies (and if you don’t have one, you should!). Having a well-written policy will help to avoid confusion, make clear what employees can and cannot say on social media, as well as help to ensure brand and corporate image protection.
If you have questions, want to discipline or terminate an employee for social media posts or would like help drafting a Social Media policy, please call or email us.