Is My Employer Violating My Civil Rights?

Dear Evil Skippy:

I was just hired for an office position.  During orientation, the office manager said that we should be careful not to make negative comments about co-workers on Facebook or other sites.  The office manager said posting negative comments could be cause for termination.  Is that even legal?  This has to violate the First Amendment and Freedom of Speech.

—  Civil Rights Oriented

Dear C.R.O.:

The First Amendment says the government can’t restrict your freedom of speech.  It does not restrict private employers in the same way.  While the power is not unlimited, private employers generally can make it a condition of employment that you not say certain things in certain forums.  You may get fired for exercising that freedom by violating your employer’s rule, but the government can’t penalize you in any way.  Your freedom of speech is not “restricted” – you’re just out of work.

If you work for a public (i.e. “government”) employer, the answer is a bit fuzzy.  But really, who cares if the rule is legal or not?  Whether or not the First Amendment is involved, it’s stupid and immature to post negative comments about a co-worker or anyone else.  Sure, whine in general and make vague complaints – but don’t name names.  Whatever you say lasts forever and makes you look bad, so don’t do it whether or not your employer has a rule.

Let your inner adult rule on this one.  Take the high road and all that jazz.

—  Evil Skippy

P.S.  If you have really bad stuff to share, send it to me.  I always need great material. 

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  1. C.J. says

    I would think it had more to do with the Company’s public image. In order to have a good working relationship we need to have a positive attitude and environment. By spreading what we think on every little issue just makes life miserable for everyone.

    We as a nation (world) are so into saying what we think and sharing it with the world on Facebook. Somethings just need to stay in our minds not out loud.

    I have found over time that having a positive attitude is better than feeding on the negative. It just brings everyone down.

  2. ...ts. says

    @Jim: Good contribution! The issue here is not so much the First Amendment, which, as ES points out, applies to government, not private employers. The real issue is the National Labor Relations Act’s protection of concerted activity. No matter what the forum, no matter how crude the comment, if the message is addressing the terms and conditions of their work or workplace, employees probably have a right to say whatever they want. Private employers probably have little to worry about in terms of the First Amendment, but given the radical nature of the current NLRB, employers still have lots to worry about.

  3. firebelly says

    I’ve seen a legal opinion recently in a case where an employee wrote disparaging comments about management on a cubicle whiteboard and covered them up with a piece of paper. The employee argued that the piece of paper covering the remarks afforded them the right to privacy and that the remarks themselves were free speech. The legal opinion cited cases in which employers were afforded the right to an “effective workplace environment” and the court opinions seemed to indicate that disparaging speech by employees was detrimental to an effective workplace environment and therefore subject to discipline. Are you aware of legal conclusions like this Jim?

  4. Claudia says

    Perhaps I’m naive about Facebook but If I have a FB page and I post any kind of comments (unless I’m a complete twit and set the privacy settings on “let everyone read this”) and I haven’t “friended” my boss or supervisor (that could be the topic of a whole other ES post) how is my employer going to see them?

  5. Zhenya says

    It’s your “friedns” you are naive about, I think. One of them might repost your post or comment on it, or even print it out and carry it to work. The rule is, don’t write it down (or up?) if you don’t want it found by the person it’s about.

  6. Paula says

    @ Claudia – I’m with you, it is foolish for people to leaving their settings open so that everyone can see their posts.

    @CRO – more importantly is why would you rant on facebook if you have friended your boss, co-workers or company facebook page. Don’t friend these people, keep your settings private and you can rant away, otherwise take that high road and keep it to yourself or share it with only close friends or family verbally.

    Recently a friend of mine who owns a coffee shop did fire an employee for posting on facebook….not that they said anything bad about the business or co-workers but the person had called in sick the day before claiming they were in the emergency room and the following day posted on facebook (they had friended the business) that they were having a great time in Lake Chelan and it had been a fabulous weekend.


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