November 23, 2010

Facebook firings and the First Amendment

Posted in Discrimination, Employee Handbooks, Employee Privacy, First Amendment, Minnesota Lawful Consumable Products Act, Social Media in the Workplace, Social Networking tagged , , , at 10:10 am by Tom Jacobson

It’s a free country.  Sort of.

The recent firing of Alisha Arnold by Eagan, MN-based TempWorks Software adds yet another layer to the complex world of work and social media.  According to KSTP-TV, Arnold was fired after she and her husband created a controversial website  that asked the public to vote for or against the abortion of their unborn child (see Apple Valley Woman Who Launched Abortion Voting Site Is Fired,  According to a memo KSTP obtained, TempWorks reasoned that Arnold’s postings posed a “grave risk to the reputation of the company…”.

But isn’t it a free country?  Doesn’t the First Amendment prohibit an employer from firing an employee who speaks her mind?  Not necessarily.  Although public (that is, governmental) employers must be cautious about First Amendment issues, the First Amendment does not apply to  private employers such as TempWorks.  So, Arnold will not be protected by the First Amendment even though TempWorks apparently fired her because of what she said and how her comments/actions somehow damaged the company’s reputation.

Even though private sector employers really do not have to worry about the First Amendment, there are plenty of other reasons why they should be cautious about firing employees over their Facebook posts or other on-line activities.  For example, Minnesota law prohibits employers from discharging employees because they engage in the use or enjoyment of lawful consumable products (such as alcohol or tobacco), if the use or enjoyment takes place off the premises of the employer during nonworking hours (consider a Facebook post of an employee at a party).  And, other laws prohibit employers from disciplining or discharging employees because of many other legally protected characteristics (consider an employee’s own website advocating civil rights of some kind).

So, even if a private sector employee’s on-line activities pose a “grave risk to the reputation of the company,” those activities may be protected by something other than the First Amendment, and that should cause employers to proceed with caution before taking action.  Well-written Internet and social media policies can help define everyone’s respective rights and responsibilities.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

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