Can You Be Fired For Trashing the Boss on Social Media?

FindLaw SUCKS!

Just kidding. It’s actually pretty awesome. But could a certain blogger be fired for uttering such a statement on his Twitter account?

Generally, when it comes to private employees, employees can be fired for nearly anything, unless their contract provides protection. The National Labor Relations Board provides some protection for employees, but the extent of their protection is uncertain. They are concerned with matters such as workplace abuse of employees’ rights; they don’t care if those purple pants make your boss’ posterior look extra-broad.

Outside of the NLRB’s efforts, employees of private companies are only protected from firings for improper discriminatory reasons, (such as racial discrimination), or for retaliatory reasons, (such as firing someone for complaining about sexual harassment). If you are employed by a private company, the best social media policy is to keep the complaining offline or confined to private messages.

Now, if FindLaw was a subdivision of the government, there might be some protection in place. The law was once, “There may be a constitutional right to talk politics, but there is no constitutional right to be a policeman.” In other words, say what you please on the way out the door.

However, in the 1960s, the Supreme Court began to recognize the broader picture and instead stated that the government shouldn’t be able to do indirectly what it cannot do directly. Employees of the government should not have to forfeit constitutional rights in order to make a living. Government shouldn’t quell free speech via economic means.

Not all speech is protected. For example, in one ruling, an employee was allowed to be fired for complaining repeatedly over the internal workings of the district attorney’s office. The court ruled that such musings were not a matter of public concern and could impede the working relations in the office. Conversely, a woman who expressed her approval of the attempt on President Reagan’s life was reinstated, as that was a both a matter of public concern and would not impede the workings of the office.

To answer the question of whether a public employee was properly fired, a court should consider:

Was it a matter of public concern?
Were there any other independent reasons for the termination? (For example, an employee who tweets while snorting meth off his boss’ desk can be fired for reasons unrelated to the tweet.)
Does the commentary impede the government’s ability to function?
If the social media remark was political, is party affiliation an appropriate consideration for the office? (Example: Mayor Emanuel can refuse to hire Republicans. Cook County jail can’t.)

Even if you think your speech is protected, you still might want to think twice before you tweet. As you can tell from the above list, the law is far from cut and dry. Plus, if your employer can find alternative reasons for firing you, you might be out of luck. At a minimum, we’d recommend amping-up your privacy settings.

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