Q: I was just fired for a comment I made on Facebook. One of my co-workers posted that she was fired. All I did was post a response saying "WTF" and that they were crazy to fire her. The next day, I went to work and got fired. I think I did nothing wrong. I posted it to show solidarity for my friend, and I should have the freedom to say whatever I want. What about freedom of speech?
A: The First Amendment of the United States Constitution states, "Congress Shall Make No Law Respecting an Establishment of Religion, or Prohibiting the Free Exercise Thereof; or Abridging the Freedom of Speech, or of the Press, or the Right of the People Peaceably to Assemble, and To Petition the Government for a Redress of Grievances." So yes, you have the right to say what you want. The company you worked for also has the right to write and distribute a handbook of its policies and rules for employees to follow, and usually, failure to follow those rules can result in dismissal.
According to attorney Patrick Casey, nongovernmental employees traditionally have a broad legal right to fire at-will employees for things an employee says. This may apply to profanity unless it's part of a comment designed to improve working conditions. If the profanity is intended for this reason, the court can try to balance the employer's interest in enforcing its employee handbook with the employee's interest. The court will consider employer/employee relations, if the statement was impulsive or pre-meditated, or whether the employees are considering unionizing, for example.
Most states are at-will, which means employees may be fired for any reason or no reason at all, as long as it is not discriminatory in nature. At-will employees, though, do have some protection. In recent years, the National Labor Relations Board, which investigates unfair labor practices, has begun to limit the employer's ability to limit the social media speech of its employees. In April 2015, the NLRB made it clear that as long as the social media communication is related to working conditions or unionization, it is protected.
Casey explains that ultimately, if the comment was designed to "improve working conditions," the NLRB may protect it. Your employer can still set rules about social media activity, but those rules cannot be so broad as to limit attempts of employees organizing or civilly discussing ways to improve the workplace. However, it does not sound like that was your intention. It does sound like you genuinely liked your job and your co-workers, are in a social group that is unaware of the effect profanity has on others, and that you spontaneously expressed your dismay over her being fired. If you think you are not sophisticated or poised enough to call the head of human resources to formally apologize, contact an attorney to assist you in getting your job back. Meanwhile, lose the I-did-nothing-wrong attitude. Despite its common use, profanity is still crude, whether you use the complete word or an abbreviation. If you directly contact your former employer, an attitude of gratitude could pay off big time.
Email your questions to workplace expert Lindsey Novak at [email protected] and follow her on Twitter @TheLindseyNovak. To find out more about Lindsey Novak and to read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at www.creators.com.
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