Recently a federal law suit was filled by Orlando “O.J.” Concepcion. He was fired from his job with the Sandy Springs Police Office because of posts that he made on his personal Facebook page. He alleges that his termination was wrongful because he has a right to make private statements as a private citizen. Moreover, he claims that the termination was racially motivated because other officers were posting similar material and received no punishment or consequence. Mr. Concepcion is Hispanic and his fellow officers are White.
Termination for posts on Facebook is in the news a lot, but it is new territory for the courts. In the age of instant computer searches and the ability to capture communication with screen shots, employers are able to learn and document a lot about your out of work behavior. Whether this information is legal as grounds for termination is something that courts are still trying to address.
The ACLU believes that it should all be illegal. Debbie Seagraves, executive director of the American Civil Liberties Union of Georgia, has stated “You have a right to be bawdy and raucous in your private space. You have a right, but I’m going to be watching, and I don’t like what you’ve posted, and I’m going to use that in employment decisions’ — that’s (a) pretty clear (violation).”
However, this viewpoint is certainly not the legal reality. In Georgia and elsewhere in the country, employees are typically “at will” which means that they can be fired for any reason at all, as long as that reason is not discriminatory. A Texas law firm states it this way: “Many employees think that they are protected by “freedom of speech” found in the First Amendment to the Constitution. This may be true if your employer is a government agency, however, the first amendment does not otherwise apply to non-government employers. If you work for a big corporation or a small company, they CAN fire you if you criticize them on Facebook or elsewhere. The reason for this is that most states have “employment at will” which allows an employer to fire employees at any time for any reason, or no reason at all. Facebook postings are NOT protected speech under the First Amendment when it concerns a job with a non-government employer.”
But there are some significant exceptions to at will employment and the right of employers to fire for Facebook or other social media posts.
- If you were discussing union activity or organizing on your Facebook page, your employer cannot fire you for that. Your right to unionize is protected by the Constitution, as well as the the National Labor Relations Act (also known as the NLRA or the “Wagner Act”, which gives private sector workers the right to choose whether they wish to be represented by a union.)
- If you were complaining to other coworkers about work conditions and other matters that are specifically related to your workplace treatment those discussion cannot be grounds for termination because they are considered “concerted activity.” Non-unionized workers are protected by this law, as well as unionized workers.
- If you were talking about things that relate to your race, sex, disability, religion or ethnicity.
- If you work for the government,you have greater protection of your first amendment rights than if you work for a private employer, but there are small exceptions to that too.
In the case of Mr. Concepcion, he was working for the government at the time of his employment and he also alleges that his firing was arbitrary and targeted because of his race. Those are two exception to the general right of employment at will and are the bases of his lawsuit. If you have been terminated and believe that it was unlawful, the lawyers at Betts and Associates would be willing to talk to you. Please contact the office for an appointment.