Can You Get Fired For Speaking Your Mind Online?
3.26.2024
Employees are free to express their opinions, but their employers may hold them responsible for the content of what they say.
With the widespread use of social media and the blurring of the lines between work and home, many workplaces are dealing with these contentious issues. The New York State Bar Association hosted a Continuing Legal Education program that examined the limits and challenges of free speech in the workplace.
The panelists were:
- Sara Kula, employment attorney, mediator and arbitrator at Kula Law.
- Greg B. Reilly, labor and employment attorney at Bond, Schoeneck & King.
- Jennie Woltz, founding partner and employment and labor attorney at Woltz & Folkinshteyn.
- Marissa Comart, assistant general counsel at Etsy.
Kula moderated the discussion.
The Limits of Free Speech
“The first amendment has limits,” said Reilly. “It applies to Congress, or basically the government. And they can’t make a law that impedes freedom of speech or the press… Only the government has these restrictions. Private sector employers don’t.”
The panelists explained that an employer has the right to fire or discipline an employee whose actions:
- reflect badly on the company.
- reveal trade secrets.
- are illegal.
- are related to habitually poor performance or misconduct.
- are a misuse of company resources, such as posts made on company computers.
- are discriminatory toward other employees.
“The employer can’t treat people differently based on their speech,” said Kula. “But there’s also the issue of employee speech that may interfere with other employees’ rights to be free from discrimination.”
The panelists also discussed a hypothetical scenario in which a teacher at a day care center makes posts about the war in Gaza. Some of these posts call for a ceasefire, while others use the antisemitic tropes that Jews are bloodthirsty and control the media.
Reilly said that there could be a way to resolve the issue with the employee without resorting to litigation or termination. “Maybe some of that stuff could be resolved internally by a good Human Resources manager,” he said. “So people can have their opinions, albeit mistaken opinions, but not disrupt the workplace. These are difficult issues, but I would hope that employers first try to see if there’s an option to resolve them voluntarily.”
He also advocated for employers to have a social media policy in employee handbooks, so people know what is and is not allowed.
In a similar real-life case, a teacher was fired from her job at a synagogue for writing blog posts rejecting the Jewish people’s claim to Israel and calling for its destruction. “And the argument there, that the court accepted in allowing the termination of this teacher to proceed, was that it did constitute a real business interest conflict with the temple,” said Woltz. “If you are hired to teach love of Israel to your people, and behind the scenes are saying that this place should be destroyed, then clearly it is a business conflict with your job. At least that’s what the court found there.”
Union Organizing in the Workplace
The National Labor Relations Act not only protects employees in unions, but it also protects employees who are organizing and discussing their wages and working conditions – even if that conversation takes place over social media.
“Even if they’re not unionized employees, that is likely to be to be interpreted as collective action that’s protected under the National Labor Relations Act,” said Reilly. “And if the employer interferes with that kind of speech they can get in trouble.”
However, it is generally held that unionizing activities, such as meetings, should be held outside of the workplace and not during company hours.
On the flipside, employers cannot mandate that employees listen to their own political views. “Employers can’t, even in the non-unionized workforce, force employees to listen to employer-sponsored meetings, the primary purpose for which is to espouse the employer’s view on religious or political matters,” said Woltz. “So unionized, non-unionized, if you’re having meetings that you are requiring people to be at, it’s a good idea to contact your local employment attorney.”
The panelists agreed that workplace policies around speech should not be used to stifle discussion, but to create a culture of respect.
“If the company instills a culture that isn’t aligned to one particular view, but it’s really embracing different perspectives and respect, then that’s a way that people who have differing views outside of work can really come together and focus on the work,” said Comart. “But also having your colleagues be part of your social group, who you can bounce ideas off of, and meet people who you might not otherwise socialize with and share ideas… If the company is able to really create a culture of inclusivity, then that just includes everybody.”
The Labor and Employment Law Section sponsored the program. Watch it in full here.
