If You Value Your Job, Be Careful What You Post On The Internet

In the past few months, many people have made internet statements about certain issues and groups. That’s occurring at an unusually frequent level. Employment terminations also seem to be happening at an unusual level in response to such statements. Let’s review why that’s happening and whether such terminations are legal.

People fired because of internet postings have learned a harsh truth – In most instances, employees can be legally fired for their internet postings. It doesn’t matter what the post was about or where the post occurred. It also doesn’t matter whether the employer has an official policy against certain types of internet posts. An employer can fire someone for something that person says on the internet the same as that person can be fired for speaking the same thing out loud.

This article can be considered a corollary to one I wrote years ago concerning the right of employees to engage in activism-type speech. The gist of that article was that, other than public employees, there are no First Amendment speech protections for private employees against actions by their private, nongovernmental employers. The First Amendment protects against government action, not action by private businesses and individuals.

The lack of First Amendment protection in the private sector is why private employers are allowed to restrict their employees’ speech and political statements at the workplace, such as campaign buttons. That’s also why employers can fire employees because of internet statements. It’s a common misconception for private employees that they have any kind of free speech rights relative to their private employers.

Several other misconceptions are also getting private employees in trouble in these situations. One misconception is that employers cannot regulate what employees do on their own time away from the workplace using their own electronic devices and personal email accounts. That’s flat wrong in many circumstances. Internet postings are one such circumstance.

Another misconception is that employers cannot monitor their employees’ social medial accounts. That’s true to a point. There are certain laws, beyond the scope of this article, regarding access to social media accounts (to the extent that they’re kept private) by people to whom the person hasn’t granted permission. But publicly available posts are fair game. So are private posts that are shared by someone who had permission to access them.    

A third major misconception is that private employees can only fired because of their own social media posts. Also incorrect. Commenting on, reposting, or liking someone else’s post can cause as much trouble as an employee’s own posts. In fact, based on the calls I’ve received, the most frequent cause of employment trouble lately for internet statements are comments that an employee made to someone else’s post.

There’s at least one other major misconception in such circumstances. It’s doesn’t matter how the employer learned of the internet post. All that matters is that the employee made the post. If someone reports the post to the employer, that’s the same as the employer finding the post itself and can result in the same consequences. And no, it’s not illegal for someone to alert an employer to an employee’s posts.

In conclusion, private employees need to mind what they say on the internet. Their continued employment could depend on it.