Beware: Posting Controversial Comments Online May Get You Fired.

Expressing ourselves through social media is the norm. Whether it’s a wacky, funny selfie with dog ears on Snapchat, or posting a snarky comment on Facebook; it is a way to express ourselves. However, it is also a quick way for employers to find out about what their employees are thinking and saying.

As a citizen of the United States you have a First Amendment right to freely express a controversial opinion or inflammatory statement in in a public forum. While the United States Constitution and its Bill of Rights protects free speech, this protection only extends to government employees. As far as private employees’ job security is concerned, they do not enjoy similar carte blanche freedom to say whatever they want with impunity, i.e., without being disciplined. This is because New Jersey is an “employment at will” state. This means a private employer can decide to fire an employee for no good reason at all, so long as this decision does not violate the law. For instance, an employee of a private company who criticizes their boss or a customer may be fired for doing so.

In our electronically interconnected viral world, comments typed onto an iPad may impact your job security. Publicly accessible internet posts blur the boundaries between personal and work life, and all that matters are whether a comment, post, tweet, or picture offends your employer. Accordingly, you must be aware that what you post or tweet may set in motion the loss of your job. However, when employees discuss legally protected topics such as discrimination, they can by and large be protected from adverse employment action.

Recently, the Equal Employment Opportunity Commission (“EEOC”) filed a claim on behalf of Adriane Scott Duane when he was terminated by his employer for complaining on about what he believed were his employer’s discriminatory practices. Duane, a transgender person, stated in an anonymous review that “If you’re not a family-oriented white or Asian Strait, or mainstream gay person with 1.7 kids… then you’re likely to find yourself on the outside…. Most management do not know what the word ‘discrimination’ means, nor do they seem to think it matters.” When Duane’s CEO confronted him about the post, Duane admitted to writing it and was immediately fired.  Because Duane had complained about his employer’s discriminatory practices contrary to law, the EEOC filed a lawsuit on his behalf. Under New Jersey’s Law Against Discrimination (“LAD”), gender identity is protected and an employer cannot discriminate against an employee based on their gender identity. Therefore, if a member of the LGBT community writes something based on their sexual identity, and is fired because of it, they may have a right to pursue a discrimination claim under the LAD.

The question of whether an employer can lawfully fire you for an out of work internet communication is very fact sensitive. If the employer treats other employees who post similar comments differently from the employee being disciplined for their post; or if the employer directly tells the employee that they are getting fired because of they possess one or more protected class characteristics e.g., based on their sex, race, age, disability, sexual orientation, etc., then it would be unlawful for an employer to fire an employee because of what they posted.

At Mashel Law LLC, we are well experienced in handling discrimination-based legal claims. If you believe you have been the victim of unlawful discrimination or retaliation in the workplace, call the attorneys at Mashel Law (732) 536-6161 or fill out the contact form on this page for immediate help. At Mashel Law, LLC, located in Marlboro, New Jersey, we are dedicated to protecting the rights of employees.



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