Social media and employment: do you have a right to freedom of speech?

There’s a lot of conversation going on regarding employee/employer rights regarding social media, what you can and can’t say privately and publically online and how employers should react. Many see this as covering several issues including free speech, privacy rights, discrimination and harassment.

Different countries have different guidelines depending on the law. In the US the National Labour Relations Act states (reference Maggie McGary’s blog):

While employers are permitted to lay out policies as to what employees may blog about in relation to work, employers cannot fashion policies that have the effect of chilling an employee's exercise of his or her Section 7 rights, nor can employers discipline employees for blogging about "wages, hours, or terms or conditions of employment," such as the company's pay scale or vacation policy. See Timekeeping Sys., Inc., 323 N.L.R.B. 244 (1997).

Essentially, an employer cannot stop you from exercising your right to free speech. However, and this applies to the UK, if an employee makes derogatory remarks about an employer or thecompany on their blog or social media profile, libel proceedings can be brought against the employee. If these comments were damaging to the employer or company, the employer could discipline and dismiss the employee regardless of the contract of employment as all employees have implied terms of trust and confidence. This is often covered and clarified in the employers Company Handbook available to all employees.

Equally, if harassment or bullying of employees is occurring online through social media then employers should have a harassment policy that clearly covers this in the Company Handbook.

So, if you resign and your company asks you not to discuss your resignation or new job on your social media profiles until you have served your notice period to avoid clients finding out unofficially and to maintain moral in the office do you have to comply?

No.

Would you want to comply?

Maybe, especially if it makes the transition process easier and less awkward.

But think:

Is your social media site of choice public (Twitter) or as private as you can make it (Facebook with all the highest privacy settings)? It’s probably not best to broadcast your news on Twitter which will show up in search engine listings unless you really don’t care what the effect may be.

Are you linked to any clients, shareholders, colleagues on your profile? Chances are with FB you only link with friends and family. If any of those friends are colleagues you would hope they know about your new job and are happy for you. They possible relish the idea of being able to congratulate you on FB rather than in the office where not everyone may be happy you are departing.

Finally, what if a non work friend posts on your profile? Your employer cannot restrict your freedom of speech or censor you so equally they cannot restrict your friends. Only if comments are libel or defamatory can your employer take things further.

Use common sense though. If you’ve signed an NDA or contract don’t say anything that you know you shouldn’t. If you get a funny feeling when you about to post and submit and start doubting yourself, chances are you shouldn’t make that post. And never burn your bridges, you never know what the future holds and may regret slagging off your employer over Twitter.

You have a choice but so does your employer in how they react to social media commentary.

NB. I am not a lawyer but there is plenty of legal advice out there around this issue. Just search Google and you will find a wealth of legal advice and HR information.