Q: I am currently suspended from work for posting a thought on facebook regarding my company. I worked for the company for over 2 years, but a recent commission-structure change has made my living difficult (60% less than what it used to be). I then received a company internal email regarding the company’s huge growth in earnings since the change!
In response, I simply posted on my private Facebook that I am extremely unhappy with the company, and feel like we (employees) are getting ”ripped off” so they can put up a good looking number at the stock holders’ meeting. Someone has forwarded this very private thought to my management, now I am currently suspended for violating the ”code of business conduct” under ”conflict of interest.” I posted this through my personal phone while on break (still on clock but on a 15 min break); again, my Facebook profile is set private. I was wondering if you could give me some legal advice on this because I feel not only my privacy but also my constitutional rights have been violated
A: The First Amendment acts as a restriction only on the government. It does not restrict the actions of private entities or individuals (except that private individuals and entities may be indirectly limited in that their ability to receive relief from a court will be restricted). Therefore, when a nongovernmental employer takes action against an employee because of that employee’s speech, it ordinarily does not raise constitutional issues.
That being said, there may be several non-constitutional issues relevant to your situation, and about which you may wish to obtain specific legal advice from an employment or other lawyer. To the extent an employee is exposing illegal activity by an employer, he or she may be protected by a whistleblower protection law. The privacy of one’s Facebook posts and messages may be protected by the Electronic Communication Privacy Act, 18 U.S.C. sections 2510-2522, or the Stored Communications Act, 18 U.S.C. sections 2701-12.
For a referral to an employment lawyer, you may want to check with your local bar association or the American Bar Association
http://apps.americanbar.org/legalservices/findlegalhelp/home.cfm
Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.
2 Comments
It is at least possible the Employee’s post was “protected activity” under the NLRA, and that the employer’s suspension in retaliation for the post violated the Act. The NLRB recently issued a report on social media issues (http://www.nlrb.gov/news/acting-general-counsel-issues-second-social-media-report). A good labor lawyer might know whether there was a violation.
It is at least possible the Employee’s post constituted “protected activity” under the NLRA and that the suspension in response to the post violated the Act. The NLRB recently issued a report on social media issues. (http://www.nlrb.gov/news/acting-general-counsel-issues-second-social-media-report). A good labor lawyer might know whether a violation occurred.
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