People who live in New Jersey and Pennsylvania enjoy the right to freedom of speech and freedom of the press under the First Amendment to the U.S. Constitution. However, limitations on your free speech rights in employment settings exist. The First Amendment’s protections are primarily meant to protect you against government censorship of your speech. Private employers are allowed to establish rules about blogging activities and social media posts. For example, posting certain types of things on social media or a blog could serve as grounds for termination of your employment. Whether your posts on social media or a blog can form the basis of adverse employment actions will depend on the nature of what you wrote and the type of employment arrangement you have. If you have been fired because of your social media posts or blogs, the attorneys at Swartz Swidler can evaluate whether your firing was legal. In general, you should avoid venting about your employer or job online.
How social media posts can lead to a job termination
Most people in New Jersey and Pennsylvania are employed at will. At-will employees may be fired at any time and for nearly any reason. They can also quit whenever they want.
Most employers give their employees handbooks at the start of their employment that the workers are required to read and sign. Your handbook might include a policy or rule that addresses social media posts and what could cause you to be fired. Some common examples of social media policies that are used by many employers as grounds for termination include the following:
- Negative statements about coworkers or the company
- Disclosures of company secrets
- Using social media during working hours
- Discriminatory posts
- Inappropriate or vulgar comments
If you work under an employment contract, your employer’s social media policies may be explicitly listed in your contract. If you violate a contract term about posting things online, you could lose your job. The list of policies is not inclusive. Your employer can write its own policies. Some employers have discipline systems with increasing modes of discipline for social media and blogging policy violations. For example, your employer might give you a warning or write you up for the first violation of its social media policy.
Are any types of social media and blogging activities protected?
While private employees can write policies about social media and blogging activities, there are still certain topics that are protected. Some examples of the types of topics that enjoy protection include the following:
- Expressions of political affiliations and views
- Whistleblowing concerns
- Discussions about unsafe working conditions with coworkers
- Posts made on personal time other than those that are illegal
It is important to note that some states protect political speech made by workers online while others do not. While New York protects political posts made by employees online, New Jersey does not, for example. Employers may not retaliate against workers for complaining about unsafe working conditions with other coworkers online as long as the discussions have the purpose to change the conditions. If you are simply complaining about your job online, that will not qualify.
Privacy rights for social media posts in New Jersey
In 2013, the New Jersey Legislature passed New Jersey Assembly Bill 2878. Under this law, employees enjoy privacy rights for their social media pages. Employers in New Jersey cannot require their employees to share their social media pages or passwords with their employers. They also cannot require employees to provide them with access to their social media pages. To protect yourself, it is best not to connect with your employer on social media and to keep your privacy settings on your social media pages high. You should still remember that even if your privacy settings are high, others can screenshot your posts and share them with your employer. Keep this in mind and avoid posting things that could lead to your termination.
Can you sue your employer for wrongful termination for social media or blog posts?
If your employer fired you because of your social media posts, and you believe that they were protected, you should talk to an attorney at Swartz Swidler to determine whether you have grounds to file a wrongful termination claim. If you win a wrongful termination lawsuit, you can seek several types of damages, including job reinstatement, back pay, and the benefits or lost wages you would have earned if you had not been terminated.
Wrongful termination lawsuits based on social media or blog posts can be difficult to win unless you were fired for participating in protected activities. If you signed off on your employer’s policies about social media posts, you will be unlikely to win if you engaged in unprotected speech.
Talk to the employment law attorneys at Swartz Swidler
If you have been terminated by your employer because of your social media or blog posts, talk to an employment law attorney at Swartz Swidler to learn whether your potential claim has merits. Our lawyers can review your posts and your employer’s policies and determine whether what you said was protected. If your employer required you to provide it with access to your social media in violation of New Jersey law, Swartz Swidler might also be able to help you. Contact us today to schedule a free evaluation of your claim by calling us at 856.685.7420 or by submitting your details on our online contact form.
