It’s far from the first time workers have lost their jobs over things they say publicly — including in social media posts.
Most of the U.S. defaults to “at-will” employment law — which essentially means employers can choose to hire and fire as they see fit, including over employees’ speech.
“The First Amendment does not apply in private workplaces to protect employees’ speech,” said Andrew Kragie, an attorney who specializes in employment and labor law at Maynard Nexsen.
“People don’t realize when they’re on social media, it is the town square,” said Amy Dufrane, CEO of the Human Resource Certification Institute.
“Employers are already and have been for a very long time, vetting employees based on what they’re posting on social media,” he said.
Employees have been fired for public statements, including those made on social media, far more often than not. In the United States. S. Although state laws may differ, employees who are disciplined for their speech both inside and outside of private workplaces generally have very few legal protections.
According to Vanessa Matsis-McCready, associate general counsel and vice president of HR Services at Engage PEO, “the majority of people believe they have the right to free speech; however, that does not necessarily apply in the workplace.”. “The majority of workers in the private sector lack workplace protections against that kind of speech. “”.
Add to that the widespread use of social media, which has made it more acceptable to monitor workers’ behavior outside of work and to dox individuals—post information about them online with the intention of harassing or hurting them.
Employers are very flexible.
Every state has different worker protections. In New York, for instance, an employer cannot fire a worker for taking part in a weekend political demonstration if the worker does not identify with the company they work for when they return to work. However, if that same employee attends a company function on a weekend and discusses their political beliefs in a way that makes others feel threatened or targets them for harassment or discrimination, they may be subject to repercussions at work, according to Matsis-McCready.
most of the U. S. reverts to “at-will” employment law, which basically gives employers the freedom to hire and fire workers as they see fit, including in response to their expressions.
“In private workplaces, the First Amendment does not apply to protect employees’ speech,” stated Andrew Kragie, a Maynard Nexsen employment and labor law specialist. In fact, it upholds employers’ authority to decide on workers based on their speech. “”.
Kragie claimed that the United States has “pockets of protection.”. S. . under a number of state statutes, including ones that prohibit disciplining employees for their political beliefs. However, he points out that the interpretation of how that is enforced varies, creating ambiguity.
Steven A. The faculty director of the University of Texas at Austin’s Bech-Loughlin First Amendment Center and a law professor, Collis, also cites certain state statutes that prohibit employers from terminating employees for “lawful off-duty conduct.”. However, there is frequently an exception for behavior deemed to be detrimental to the company or reputation of the employer, which may give rise to dismissal for remarks made in public or on social media.
Even with one of those laws in place, Collis stated, “in this case, if someone believes one of their employees has done something that suggests they are glorifying or celebrating a murder, an employer might still be able to fire them.”.
The procedure is somewhat different for public employees, which can include elected officials, postal workers, and school teachers. According to Collis, this is because the First Amendment has a special function in cases where the government serves as the employer. The Supreme Court has decided that an employee is protected if they are speaking on a public issue while acting in a private capacity.
But that hasn’t stopped the government from censoring speech since Kirk’s passing. Pentagon officials, for example, declared a “zero tolerance” policy for any posts or remarks made by soldiers that ridicule or celebrate Kirk’s death.
Pentagon top spokesman Sean Parnell made the announcement on social media Thursday, just hours after a number of conservative military activists and influencers started sending Parnell and his boss, defense secretary Pete Hegseth, posts they deemed problematic.
Parnell wrote on Thursday, “Celebrating or mocking the assassination of a fellow American by military personnel and civilians in the Department of War is unacceptable.”.
A flurry of political discussion.
Social media’s widespread use has made it simpler than ever to express views on politics and significant news events as they happen. However, social media posts leave a record, and during periods of growing political polarization, those statements may be viewed as harming a person’s or their employer’s reputation.
Amy Dufrane, CEO of the Human Resource Certification Institute, stated, “People don’t realize when they’re on social media, it’s the town square.”. Over the fence, they aren’t speaking privately with their neighbor. They’re actually expressing their opinions. “”.
Undoubtedly, political discussions are not just found on social media; they are also increasingly appearing in the workplace.
“I do think that makes it feel a little less formal and someone might be more inclined to take a step and say, ‘Oh, I can’t believe this happened,'” Matsis-McCready said. “The gamification of the way we communicate in the workplace, Slack and Teams, chat and all these things are very similar to how you might interact on Instagram or other social media.”.
Companies aren’t prepared.
Considering the tense and divided U.S. S. . The Human Resource Certification Institute claims that a large number of HR professionals have stated that they are ill-equipped to handle contentious issues in the workplace. However, employers must establish guidelines regarding appropriate and inappropriate workplace behavior because those discussions will take place, according to Dufrane.
“HR needs to really dig in and make sure that they’re very clear on their policies and practices and communicating to their employees what their responsibilities are as an employee of the organization,” Dufrane stated.
Numerous employers are examining their political speech policies and offering training on proper behavior both within and outside the company, she said. It’s also possible that some of them reacted more strongly in the days after Kirk’s death due to the brutality of his murder.
Matsis-McCreedy stated, “I believe there is a genuine concern from employers that they want to keep the workplace safe and that they’re being extra vigilant about anything that could be viewed as a threat, which is their duty, because of the violent nature of what some political discussion is now about.”.
Employees may also be viewed as brand ambassadors, and depending on what they say and how it is interpreted, their political speech may damage a company’s reputation and weaken its brand. According to her, more businesses are responding to what workers are saying online as a result.
After some of the people’s posts went viral, Matsis-McCready said, “their employers’ phone lines were suddenly inundated with complaints.”.
However, experts like Collis don’t expect a big shift in how companies monitor their employees’ speech, pointing out that online activity has been scrutinized for at least the past 15 years.
He asserted that employers have been screening workers based on their social media posts for a very long time.
