Can I be fired for a Facebook comment?

I was recently fired for a post on my private Facebook page which didn’t mention where I work, or names of any sort. I believe my employer asked an employee to see it because she could not access it herself. Then, she used the information to fire me. Is that legal?

Steve Duggan replies:

Ah, Social Media. Is it ever really private? You actually asked several questions in your online post.  The other topics addressed issues of privacy which we have covered before in our ATL FAQs section. I will address here your first one: the privacy of social media posts.  There is no right of free speech in the private sector workplace. There are however, some protections for speech, including for social media posts.  The NLRB has held that online speech which constitutes “concerted activity” (which means generally concerns workplace issues and is meant for other employees), is protected speech under the National Labor Relations Act. Further, some states protect off duty conduct, including speech online, that is otherwise legal, from employer retaliation. Your question did not indicate which state you are in.  Also, if your online comments were about perceptions of, or reporting of, illegal harassment, discrimination or retaliation in employment, you may be protected against employer reactions under Federal and State discrimination laws. If you think your speech might have fallen within one of these categories, you should consider consulting a local employment law attorney.

Posted 05-11-2016

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.

2016-05-11T20:32:02+00:00

About the Author:

Steve Duggan graduated from the Law School at the University of Notre Dame while on active duty in the Air Force. He has extensive experience representing management litigating cases of wrongful termination, employment discrimination, and sexual harassment. Steve also has experience in all phases of administrative litigation of unfair labor practice charges, and class and individual complaints of employment discrimination. He has been an instructor of seminars for supervisors and managers on labor management relations and other personnel issues, and for lawyers in basic and advanced trial advocacy courses. Steve came on board with Fair Measures in 1998.