Different laws control the relationships between employers and employees. They exist at local, state and federal levels and have built up over many years. Meantime, the ways in which we engage with each other is changing all the time, with social media platforms being the most recent.
How the existing laws should apply to the new media forms is one of the most challenging questions legislators, regulators and employers grapple with every day. In response to social media access and perceived threats, many employers create policies outlining what's acceptable behavior and what is not. They often warn that violators face disciplinary action, including possible firing. Is that legal? The answer is that it depends.
The National Labor Relations Act is the federal law most likely to apply in involving speech and activity on social media. While it does not address the subject directly, opinions offered by officials citing specific cases provide guidance. And what many observers conclude is that certain activities may be protected, such as:
- Co-worker discussions about employment conditions.
- Making disparaging remarks about supervisors.
Many employees might believe the free speech provisions under the Constitution offer a shield, but that is a dangerous assumption under which to operate. The First Amendment only applies to government action. The law grants private sector employees, and even some in the public sector, great latitude to restrict online speech by employees.
Perhaps most important for anyone in Texas to remember is that this is an at-will employment state. Workers and employers alike can end a relationship for almost any reason, as long as it does not involve discrimination based on gender, race, national origin, age, disability or pregnancy.
Actions in retaliation for filing a workers' compensation claim, or blowing the whistle on fraud or violations of safety rules, sexual harassment or stemming from disputes over wages could also warrant a wrongful termination action.
Whenever such matters are in question, it's best to consult with an attorney who can explain your rights and options.