First Amendment Rights are a hot topic right now. Discussion ranges from the right of NFL players to kneel during the National Anthem to what a person says or does on their personal social media accounts.
The First Amendment is actually fairly narrow in scope. It states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” It limits what the government can do to your freedom of speech, expression, etc. What it doesn’t do is provide a lot of protection in the private sector.
Recently, Hayley Geftman-Gold a CBS vice president and senior counsel, was fired for posting comments on social media stating that the victims of the Las Vegas shooting didn’t deserve her sympathy because they were probably Republicans. Just yesterday, ESPN announced the suspension of ESPN anchor Jemele Hill for her second violation of the company’s social media policy. Jemele Hill took exception to Dallas Cowboys owner Jerry Jones stating that he would bench any player who disrespected the American flag and voiced her displeasure on Twitter. She previously posted tweets referring to President Trump as a white supremacist and prompted the White House to call for her to be fired.
So, the question is can an employer discipline and even fire an employee for what he or says or posts online after work hours or on their private social media account? The answer of course is that it depends. Some states (a minority of states) prohibit employers from disciplining an employees for what he or she does on their personal time, as long as they are not engaging in illegal activities. So, in these states, an employee is likely be protected from discipline for what they post online.
It may also depend on the device you use to access social media. Often times, anything you view or post through a company-owned device is available to the employer. That includes smartphones, tablets, computers, etc.
One reality to bear in mind though is that the majority of employment is at-will. This means that an employee can be fired for just about any reason. The Employer does not have to show just cause. So, if you get online and start posting comments that your employer takes exception to, you can likely be disciplined. Your political beliefs are not protected in the workplace.
Horman Nichols, LLC 