Page 22 - BusinessWest October 13, 2021

Discipline for Social-media Speech
Workplace Policies Are Often the Key to Courtroom Challenges
By Kevin Maynard
In any given week, a news outlet or website will spotlight an employee being suspend- ed or fired by an employer for a social-
media post. These posts range from expres- sions of political sentiments and individual beliefs to commentary on the employee’s workplace or even the employer itself.
With the prevalence of social media in the daily lives of most individuals, employers are increasingly disciplining their employees for off- duty social-media posting, and employees are pushing back with legal actions.
In the resulting legal disputes, employees often mistakenly believe that the First Amend- ment protects all in-person and online speech. In reality, the First Amendment’s free-speech protection is limited to protection against gov- ernment action. While public employers have a First Amendment obligation to respect some of their employees’ speech, private individuals and employers generally have no such constitutional obligation.
Public Employee Speech
Generally, a public employee’s speech is pro- tected when it relates to a matter of public con- cern or importance. However, this is not an abso- lute, and a court must balance an employee’s
right to free speech against an employer’s interest in an efficient, disruption-free workplace.
the termination of her employment. An arbitra- tor to whom the matter was referred by agree- ment has reportedly found in the teacher’s favor, ordering reinstatement to her position and pay-
“In the resulting legal disputes, em- ployees often mistakenly believe that the First Amendment protects all in-person and online speech. In reality, the First Amendment’s free-speech protection is
For example, a public-school teacher brought a lawsuit against her school district after being fired for making nega-
tive blog posts regard-
ing supervisors, union
representatives, and fel-
low teachers. In uphold-
ing the termination of
employment, the Court of
Appeals in the Ninth Cir-
cuit ultimately held that
the blog posts harmed the
Washington State public-
school district’s legitimate
interest in the efficient
operation of its workplace
because other teachers
refused to work with the former teacher, and the termination was, therefore, appropriate.
Earlier this year, a public-school teacher in Fall River was fired for posting allegedly political and racist comments on social media. The teach- er filed a lawsuit in Massachusetts federal court, claiming the city did not have “good cause” to terminate her employment and that her teachers’ union breached its duty of fair representation by not providing her any representation following
limited to protection against government action.”
ment of all back wages. According to her attor- ney, the teacher intends to sue for retaliation and defamation.
Private Employee Speech
Unlike in the public sector, the First Amend- ment generally does not apply to the actions of private employers.
However, private
employers even in a
Social
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