Employees’ Right of Free Speech on Social Media

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Table of Contents

Introduction
Did the Employer Violate Employees First Amendment Right?
Would Public Policy Exceptions Apply?
Conclusion
References

Introduction

Majority Americans believe that free speech is one of the fundamental rights. When facing unexpected consequences after making unpopular statements on social media platforms, many people are quick to cite and refer to First Amendment protections (Bernstei & Najdowski, 2021). In reality, this is a right that is often misinterpreted and misunderstood. For instance, the individuals who participated in breaching Capitol were arrested, terminated by employers, and faced several other consequences due to their comments and actions (Hudson, 2018). In this regard, the following discussion will evaluate the applicability of First Amendment rights in the private employment sector.

Did the Employer Violate Employees First Amendment Right?

It is easy to interrogate whether Americans have an absolute right to say whatever they wish without any consequences; however, the answer is “No.” Specifically, the popular yet misunderstood First Amendment Act reads: “Congress shall make no law … abridging the freedom of speech, or the press; or the right of people peaceably to assemble and to petition the government for a redress of grievances (Bernstei & Najdowski, 2021, p.59)”. The most important words are, “Congress shall make no law.” In reality, this means that the First Amendment applies to the United States government and their employees in that case and no one else beyond that. Subsequently, the 14th Amendment widened the Bill of Rights to the state and local government and related institutions (Bernstei & Najdowski, 2021). Therefore, it is essential to note that while the First Amendment protects the citizens from the government on matters related to free speech, it does not by any means protect them from anyone above that (Hudson, 2018). In other words, the citizens are not covered by the reasonable judgment of fellow Americans and employers.

Evaluating the case study, one can conclude that the employer did not violate the employee’s First Amendment rights for some reason. Firstly, the private employer policy stated that employees were barred from posting and sharing materials on social media accounts that identified them as employees of said companies (Bernstein & Najdowski, 2021). The organization confirmed that they were supporters of human rights for all people despite race, sexual orientation, and race, among others. By reposting a tweet that stated non-citizens have no rights and were in the United States illegally, it was clearly against the ethics of the organization (Bernstei & Najdowski, 2021). The decision of the organization to terminate the employee was fully justified and did not violate their rights considering that it was a private firm and they already provided their rules and regulations. However, the employee acted opposite to what was expected, leading to disciplinary action.

The employer can take any disciplinary actions against their employees because of what they post, express, and say on platforms like social media. This is specifically for the private employers, who should nonetheless be consistent and non-discriminative in the actions that they take. The post and messages posted and shared do not necessarily need to be political or not, made at work or during free time, and offensive or not. All is majorly dependent on rules, values, and policies that private employers have set (Hudson, 2018). Employees of the private employers and sectors are expected to strictly adhere to the employer’s rules, which in many cases is part of a written contract that one signs during acceptance of the job’s terms and conditions. When the employees fail to follow some of these identified rules, the First Amendment offers no kind of protection (Hudson, 2018). Likewise, a private school can suspend a student either definite or indefinitely for criticizing a school policy. A private media company such as CNN can refuse to publish and share broadcast opinions and views it disagrees with.

It should, however, be noted that private employers are not unquestionably free to discipline for speech in case another statute protects it. For instance, private employers cannot by any means punish employees for engaging in activities associated with terms and conditions of their employment, nor can they discipline for participating in opposing discrimination and harassment. The most important thing for private employers to do in as far as policies including to but not limited to “appropriate use of social media” is concerned is to practice consistency (Hudson, 2018). By stating this, it means that the employees should be notified in case of a change of policies and rules. Doing so will allow the employees to learn the said policies and be aware of what to say and not, and be protected from unexpected charges and dismissals. When the policies are clear and consistent, it could be clear in the mind of the employees who would like to go overboard and share messages and posts that do not agree with employees’ policy, and they would be well aware that actions can be taken.

Would Public Policy Exceptions Apply?

Afterwards, the employer said that the action of the employer fell under the public policy exception to employment at will, considering that it restricted the participation of the employee in the political process. Under the public policy exception, an employer cannot fire or dismiss an employee his or her duties under the unique circumstances that there could be a violation of the public policy of a state, state stature, or even federal stature (Brooks, 2020). In other words, an employer is not expected to punish an employee under the situations where they were performing in relation to the public policy (Brooks, 2020). Thus, an employee cannot lose a job even if he or she disobeys her employer by not engaging in an illegal and immoral act. This is the reason why public policy is majorly recognized as an exemption to the at-will rule.

Evaluating the case study and the specific issue that is under scrutiny, one can tell that the public policy exception applies. Under this policy exception specifically to the employment at will, it clearly states that an employee is wrongfully discharged under the circumstance when termination is against the explicit and well-established public policy of a respective State (Brooks, 2020). For instance, in several states, employers cannot terminate an employee’s contract for other actions, such as filing workers’ compensation claims in case of injury during work (Brooks, 2020). However, the widespread view in different States is that a public policy can be found in a State constitution and stature, among others (Brooks, 2020). Nonetheless, this is not always the case considering some states have either expanded or limited the doctrine beyond this point. It is essential to note that the public policy exception is accepted widely, with over 43 out of 50 states recognizing it.

The employee’s issue on the respective social media platform can be narrowed to a public policy matter needing exception. The employee posted an issue relating to the non-citizens who were living in the United States illegally. Most importantly, the Facebook post by the employee was made about a tweet a politician had made (Brooks, 2020). It could be argued that politicians are lawmakers and the views and ideas they share are more of public policy issues. Thus, the employee is reposted as a matter of public interest, which is exempted to employment at will (Brooks, 2020). It, therefore, means that the employees’ contract was not supposed to be terminated, and he or she has the right to seek justice of any form to get back the job and damages.

Conclusion

In conclusion, it is worth noting that the First Amendment rights do not protect private company employees in case they post and share messages that their employers feel are not in line with organization policies. Nonetheless, the Amendment offers Americans the right to express themselves without any form of government interference. First amendment rights prevent the United States government from forming a state religion and giving any kind of favors whatsoever for one religion over the other. In regard to the case study, the founding reason why the employee was terminated was due to the fact he or she failed to abide by the organization’s appropriate use of social media policies, and internal investigations found out that they were not followed. In other circumstances, and according to the employee, the employer’s action feels under a public policy exception. The public policy exception can apply to some extent considering that the content posted was about the illegality of non-citizens, a matter that can draw public interest and concern.

References

Bernstein, K. M., & Najdowski, C. J. (2021). First Amendment knowledge and competence United States residents. Behavioral Sciences & the Law, 39(3), 328-344. Web.

Brooks, O. (2020). At-will employment and the role of free speech: should Iowa’s public policy exception protect speech of public concern in the private workplace? Drake Law Review. Discourse, 69, 101. Web.

Hudson, D.L. (20.18). In the age of social media, expand the reach of the First Amendment. Human Rights, 43(4), 2-4. Web.

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Introduction

Did the Employer Violate Employees First Amendment Right?

Would Public Policy Exceptions Apply?

Conclusion

References

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