This article is the second in a three-part series on freedom of speech on social media. You can read Part One here.
Employees who feels that they were wrongfully discharged from a job can sometimes seek legal recourse against their former employer. One difficulty that is faced by many employees hoping to bring a lawsuit for wrongful termination is that employees in most states work at will. This means that employees can be fired for any reason whatsoever, as long as the reason for their termination is not an illegal one. Impermissible reasons for termination from a job include race, gender, age, or religion.
With the rise of social media, some employees have found themselves out of a job after sharing an ill-advised Facebook post. Although free speech is protected under the U.S. Constitution, the First Amendment will not come to the aid of a private-sector employee because free speech protections only apply when the employer is the government. An employee fired for a Facebook post would also have a difficult time bringing a cause of action against his or her employer for invasion of privacy. It is arguably inconsistent for an employee to openly state something on Facebook and then attempt to tell an employer that that post was meant to be kept from view.
Although a Facebook page is private to the owner, many employers require access to potential employee’s Facebook page prior to that person beginning to work at the company. This practice has begun to be outlawed by many jurisdictions whose state legislatures have enacted legislation that prohibits employers from being able to condition employment upon an employee disclosing his or her Facebook information. North Carolina, however, has not joined their number. A bill to that effect, entitled the “Job Education Privacy Act” was introduced in the North Carolina legislature in 2013, but it did not receive enough support to progress through the ratification process.
One avenue that an employee who was fired for a Facebook post can pursue is a cause of action based upon the terms of the National Labor Relations Act. That statute is enforced by the National Labor Relations Board (“NLRB”), an independent federal agency that prevents unfair labor practices by employers, regardless of whether an employee is unionized or not.
The content of the offending Facebook post may provide some protection for the fired employee. In particular, Facebook posts that attempt to raise awareness about certain conditions that exist at one’s job can be protected. The NLRB reached that decision in the 2012 case of Design Technology Group, LLC et al. The NLRB based its conclusion in that case on Section 7 of the National Labor Relations Act, which protects an employee’s right to engage in what the Act calls “concerted activity.” An employer who fired an employee for attempting to bring about concerted action through the use of Facebook could be sued by the employee for unfair labor practices. Additionally, an employee could bring a claim for retaliation against his or her employer if the employee was subsequently fired in response to what he or she posted. An employee who is successful in making his or her case for unfair labor practices can resume his or her job at the company and can also receive back pay from his or her employer.