Free Speech, Social Media and Your Job

One of the biggest misconceptions that employees hold is that the First Amendment grants them free speech rights in a private workplace.
Quite to the contrary, the First Amendment right to free speech grants private-sector employees zero constitutional rights or protections.

Today, I bring you a guest post by Ellen Gipko of HubShout, which takes a deep look at this important issue, with a special focus on online speech and social media.

“According to a June 2016 survey by HubShout, 41.2 percent of American workers say they believe that getting fired because of a social media post is an infringement of First Amendment rights.

“A Google search for ‘fired because of social media’ turns up a long list of results that are packed with stories proving that people have been fired for a variety of bad social media behaviors. The stories would certainly surprise those who believe they have an all-encompassing right to free speech and can’t be fired because of something they’ve shared on Facebook or Twitter.

Social Media and Employment

“Social media has become a valuable recruitment tool. According to social media entrepreneur Natalie Zaft, a whopping 94% of recruiters used social media to find talent in 2015. JobVite reports that 52 percent of recruiters say they always search for candidates’ online profiles during the hiring process. Furthermore, 55 percent of recruiters have reconsidered candidates based on their social profiles, with 61 percent of those reconsiderations being negative.

“The social media scrutiny does not always stop once an individual is hired.

Think Before You Post

“Rosemary Haefner, chief human resources officer at CareerBuilder says that, “Social media is booming with networking opportunities and the chance to share your accomplishments. But it could also lead to the end of your career if used incorrectly.” In fact, a survey by CareerBuilder found that that 18 percent of employers say they have dismissed employees because of something they posted on social media.

“People absolutely do get fired because of content they’ve posted on social media.

When an American is fired because of a social media post, has his or her First Amendment right to freedom of expression been infringed?

What the First Amendment Really Says

People who believe that it is against the law for an employer to fire them for an offensive social media post misunderstand the scope of the First Amendment.

The First Amendment of the United States Constitution protects the right to freedom of religion and freedom of expression from government interference. The most basic component of freedom of expression is the right of freedom of speech. The right to freedom of speech allows individuals to express themselves without interference or constraint by the government.

The First Amendment says nothing about private employers.

State and federal government employees may have more protections. According to workplacefairness.org: Public employees work for the government. So, public employees do have protection from retaliation for exercising certain First Amendment rights. Courts have been cautious in this area, limiting the protection to speech that is on matters of “public concern.”

And, the National Labor Relations Board ruled that using social media can be a form of “protected concerted” activity. Employers have the right to address work-related issues and share information about pay, benefits, and working conditions with co-workers on Facebook, YouTube, and other social media.

“While there are a few exceptions, getting fired for a social media post is typically not an infringement of First Amendment rights.

It Can Happen to You

“Some 34.6 percent of respondents to the HubShout survey are not concerned about employers or potential employers viewing their social media posts because their posts are ‘private.’

“Tom Risen of U.S. News & World Report has found plenty of data that proves that the notion of online privacy is an illusion.

“Scott Kleinberg of the Chicago Tribune writes, ‘It’s easy to overlook potential consequences when you think that all you’re doing is speaking your mind to someone in response to a tweet or Facebook post. Nine times out of 10, what you say is being read by a much wider audience and information about the person saying it is more widely shared than you’d ever imagine.’

“Kleinberg also shares this story that illustrates how a ‘private’ social media post can make its way to an employer: ‘I read a story not too long ago where someone tired of being the subject of abusive Facebook comments reached out and complained to that person’s boss. The company subsequently fired the person.’

Post Freely. Beware the Consequences.

“By and large, American people are free to post whatever they want on social media. They’re free to be provocative. They’re free to offend, insult, and disparage others. They’re free to share videos and photos of themselves that may indicate poor character or lack of judgment. But, American people take heed: do not depend on the First Amendment to save you if you get fired because of a social media post.”

Author Bio: Ellen Gipko is a digital marketing specialist for white label SEO reseller HubShout LLC, and a writer specializing in the topics of social media and digital marketing. She has contributed content to Social Media Today, Search Engine Watch, Search Engine Journal and other industry websites.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.