Beware of what you post on social media

LEGAL ADVISOR

CASE

When Is Speech Free?

Can an employer fire a worker for posting racially insensitive comments on social media accounts?

BY ANN W. LATNER, JD

Ms M began working as a nurse at a medical center in 2005 as an at-will employee. During the course of her career, she was promoted several times and eventually assumed the position of corporate director of customer service.

Ms M’s employer had a written social media policy that covered its employees’ professional and personal social media platforms. The policy explained that employees were personally responsible for the content they posted on social media and that it reflected on the employer. “Employee use of social media activities, inside or outside the workplace, has the potential to affect employee job performance, the performance of others, [the medical center’s] brand and/or reputation and the [medical center’s] business interests,” noted the policy. The policy advised employees to be aware of their association with their employer, and if they publicly identify as being employed by the medical center, they should ensure their profile and related content is consistent with how they wish to present themselves to colleagues and clients.

The policy went on to note that the center’s physicians, staff, patients, and vendors reflect a diverse set of customs, values, and points of view. “Do not be afraid to be yourself, but do so respectfully,” read the policy. “This includes the obvious (no ethnic slurs, personal insults, obscenity, etc.) but also proper consideration of privacy and of topics that may be considered objectionable or inflammatory — such as politics and religion…”

Ms M had a personal Facebook account. Her profile prominently stated her current job title at the medical center and also listed her former position as a nurse. In late May 2020, the death of George Floyd, a Black man who was killed by a police officer while being taken into custody, spurred national public demonstrations, calls for police reform, public mourning, and a focus on the Black Lives Matter movement.

In the midst of this, Ms M participated in a Facebook discussion about the Black Lives Matter movement. Among the things she wrote in her

The appellate court had to decide whether the First Amendment prevents a private employer from terminating an at-will employee.

Cases presented are based on actual occurrences. Names of participants and details have been changed. Cases are informational only; no specific legal advice is intended. Persons pictured are not the actual individuals mentioned in the article.

post was that she found the phrase “Black Lives Matter” to be racist. “Yes, I find it racist,” she posted. “Yes, it bothers me. ‘Black lives matter’ causes segregation. Have you ever heard of ‘white lives’ matter or ‘Jewish lives’ matter? No. Equal opportunity.” Another commenter wrote that “Black Lives Matter is bringing attention to the plight of Black folks in America. That they’re dying.” Ms M’s response was, “they are not dying… they are killing themselves.”

Later Ms M wrote that she supported “all” lives and that as a nurse they all matter and she did not discriminate, but she added that she did not “condone the rioting that had occurred in response to this specific Black man’s death.”

An administrator at the medical center discovered Ms M’s Facebook posts and a vice president called Ms M to discuss the remarks. During the discussion, Ms M acknowledged the posts and discussed some of the content. The VP told her that “it was bad,” and she was suspended that same day, pending an investigation. Five days later, senior administration met with Ms M. After she revealed that she was recording the conversation, the meeting ended and she was fired. She was told her firing was because of repeated instances of poor management judgment — a failure to uphold the medical center’s values.”

Ms M hired an attorney who filed a 1-count complaint against her former employer, alleging that her termination was punishment for exercising her rights protected by the free speech amendment. Her employer filed a motion to dismiss the case, which was granted by the trial court.

Legal Background

The trial court dismissed Ms M’s case because there is no cause of action for free speech against a private employer. The protection of free speech only applies to restrictions imposed by governmental officials or agencies. So, if Ms M were working for a state hospital, her constitutional right would be protected and she would have a valid argument if she were fired for her speech. An employee of a private company, however, has no such protection, regardless of how large the employer is.

The appeals court agreed and affirmed the trial court’s holding that the First Amendment does not apply in this case. The appeals court then noted that as an at-will employee, Ms M’s employment could be terminated at any time, for any reason or no reason at all. “Without a union collective bargaining agreement or an employment contract, Ms M could be fired at will.

One exception is that at-will employees cannot be disciplined or fired under circumstances that violate public policy. So, for example, a nurse who raised a red flag about patient health and safety could not be fired for doing so because that would be a violation of public policy. In Ms M’s case, however, the court held that voicing personal political opinions that have no particular value in furthering a public purpose do not qualify for the public policy exception.

In her appeal, Ms M argued that her right to speak her mind outweighed her employer’s right to promote an inclusive, nondivisive environment for its patients and employees. The appeals court disagreed, stating that Ms M’s interest in publicly posting her remarks was minimal. The court wrote in its decision that the judges had balanced Ms M’s “slight interest in publicly making her position on the Black Lives Matter movement known” against her employer’s “strong interest in protecting and fostering the diverse set of customs, values, and points of view of its physicians, staff, volunteers, and patients.” Under the circumstances of the case, the employer did not violate the clear mandate of public policy when it terminated Ms M, the court held.

Protecting Yourself

You may think that your social media account is private, but it is not. Increasingly, human resources professionals are looking at the social media accounts of candidates and rejecting those who post things that are outside of the culture of the company. If your employer has a social media policy, familiarize yourself with it. Consider not including your employment information in your social media profile at all if you think you may be posting something contrary to the values of your employer.

Keep in mind that unless you are working for a government employer or agency, there is no protection of free speech; as noted in this case, private employers do not have that obligation unless you qualify for the public policy exception. If you are not part of a union or covered under an employment contract, note that as an at-will employee you can be terminated at any time for any or no reason. ■

Ms M’s Facebook profile prominently stated her current job title and listed her former position as a nurse.

Ann W. Latner, JD, a former criminal defense attorney, is a freelance medical writer in Port Washington, New York.