With Facebook boasting 750 million users, and millions more using Twitter, LinkedIn, MySpace, and other social networking sites to post content, chances are good that many employees at any given company have a social media presence. You may consider your online posts to be personal -- put up for friends and family, not coworkers and bosses. But what if your boss finds your page and doesn't like what you post? Can you be fired for what you put on Facebook or other social media sites?
Many people believe that the First Amendment to the United States Constitution, which prohibits the government from abridging freedom of speech, protects their right to say anything they want, online or off. This is incorrect, however. The First Amendment protects us from the government, not from private companies. Within limits, the government may not tell us what we can or can't say; no such restriction applies to private employers.
That's not the end of the story, however. A number of laws limit an employer's right to discipline or fire employees for what they post online. These restrictions depend primarily on what you write about.
Protected concerted activities. The National Labor Relations Act, which sets the rules for the relationship between unions and management, also protects the rights of employees to communicate with each other about the terms and conditions of their employment. This right applies whether the workplace is unionized or not. Lately, the National Labor Relations Board (NLRB), the federal agency that enforces the Act, has shown a special interest in enforcing this right against employers who discipline employees for their online posts. If a group of employees post comments criticizing management or their working conditions, for example, that might be found to be protected concerted activity, for which the employees may not be disciplined or fired.
Off-duty conduct laws. Some states prohibit employers from disciplining employees for what they do on their own time, as long as those activities are legal. In these states, an employee may be protected from discipline for online posts.
Political messages. A handful of states protect employees from discipline based on their political beliefs or activities. In these states, an employee who is fired or disciplined for expressing particular political views online might have a legal claim against the employer.
Retaliation. A number of federal and state laws protect employees from retaliation for reporting certain types of problems (discrimination, harassment, unsafe working conditions, and so on). If an employee reports a problem online, and the company takes action against the employee based on the post, that could constitute illegal retaliation.