Giving your opinion on politics or complaining about the boss to
your friends via Facebook is so commonplace and rampant that few
people probably stop to think about the consequences of their
posting. Less thought is given to the magnitude of a Facebook user
"liking" something — a photo, a status update, a
fan page, etc. Yet, these actions can have very significant
consequences for the person behind such activity. The legal realm
is still adapting to the changing landscape of social media with
somewhat incongruous legal results, depending on who your employer
is and, in some cases, exactly what your Facebook or other social
media activity was.
For instance, Facebook use and freedom of speech are at the
center of a highly publicized legal battle in Virginia. In that
case, titled Bland v. Roberts, government employees of the local
sheriff were fired when it was discovered that they openly
supported the sheriff's election opponent, in part because one
of the employees "liked" the opponent's Facebook
page. The trial court ruled that "liking" something on
Facebook is not protected free speech under the First Amendment.
The case is now on appeal, and Facebook has filed an amicus brief,
arguing that "liking" a political candidate is a form of
verbal expression and/or symbolic expression similar to other
constitutionally symbolic expressions such as wearing an armband or
even burning the American flag. According to these groups, such
activity should be protected as a substantive statement of
political support. The fact that the decision ruling against
protecting the activity as free speech has been so highly
publicized illustrates the broad concern how the First
Amendment will interact with our social media use.
What happens, though, when the same kind of speech is made by an
employee at a private company? The First Amendment does not apply
to private employers because the Constitution only protects free
speech from government interference. Thus, employees can be fired
or punished for almost anything they do. In most circumstances,
private companies employ workers at will, meaning the
companies' management decisions cannot be challenged unless
those decisions discriminate against an employee because of the
employee's age, gender or other protected characteristic.
Therefore, a political statement, if made by an employee of a
private company, could well be grounds for termination.
There is a litany of examples of employees being fired for
something they said or did on Facebook. The practice is so rampant,
in fact, that there are blogs and websites dedicated to such
occurrences, such as The
Facebook Fired. The Facebook Fired documents such follies as a
replacement NFL referee who was
"allegedly" fired from his refereeing job after
NFL officials found photos of him on Facebook wearing New Orleans
Saints clothing. Apparently, the NFL was concerned the referee
might be potentially biased against other teams. What is
remarkable is that the referee didn't self-report his
self-interest which may have allowed him to slowly work a
different NFL game.
In another instance, an emergency room doctor in Rhode Island
was fired from the hospital she worked for after posting private
information about a patient on Facebook. Although she did not
include the patient's name, there was enough information for
others in the community to identify the patient. In addition to
being fired, the doctor was reprimanded and fined by the state
medical board for violating HIPAA (the Health Insurance Portability
and Accountability Act). Despite obvious fiduciary duties as
part of a lawyer's job to his or her client, lawyers are doing
the same remarkably dumb thing on social media. Think about
it, these people are being employed by patients and clients and
then using social media to disclose private and privileged
information. (We'll save the subject of using social media to
violate professional duties and privilege for another time).
The apparent need for people to publish every thought or
experience on social media will continue to impact
privacy rights and employment concerns for users and the
people that meet those users on any given day.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Specific Questions relating to this article should be addressed directly to the author.
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