Can I Be Fired in Massachusetts for What I Post on Social Media, Including Facebook, Twitter, and LinkedIn?

Social media has become the preferred method of communication for many people. In our experience, most of these people assume that they cannot be terminated for what they say on social media. That’s absolutely not the case, although the rules differ slightly between private and public employees.

Public employees, but not private employees, are entitled to First Amendment protection for their speech. The protection afforded to public employees is not, however, absolute. Courts currently use the following three-part test to determine whether the First Amendment protects a government employee’s speech, including speech on social media.

1. Was the employee speaking as a private citizen? If their speech was part of their job, they can be disciplined. In other words, the First Amendment only protects government-employee speech made outside of someone’s job duties.

2. Assuming they were speaking as a private citizen, was their speech about a matter of public concern (e.g., social, political, or community issue)? The First Amendment only protects speech that is a matter of a public concern. If they were speaking on a matter of private concern, the First Amendment is unlikely to apply.

3. Assuming prongs 1 and 2 are met, does the government employer’s interest in furthering its public service outweigh the employee’s interest in speaking freely? Does the speech, for example, interfere with the employee’s responsibilities? Is the speech likely to cause disharmony in the workplace?

The story is different for private employees. As mentioned above, they do not enjoy First Amendment protection for their speech. They cannot, however, be terminated for speech on Facebook or other social media platforms that is otherwise protected.

For example, numerous state and federal laws (not the First Amendment) protect employees’ rights to speak in certain circumstances and in response to conduct they think is illegal, such as complaining about sexual harassment, unpaid wages, etc. Facebook may not be the best platform to air these sorts of grievances, but employers that terminate employees for Facebook speech may violate anti-retaliation laws if that speech was protected. Generalized grievances are unlikely to be protected. Specific ones about conduct the speaker believes to be unlawful may be protected.

Long story short: you may be entitled to some protection for what you post on social media. Having said that, best practice tip: don’t air your workplace grievances on social media including Facebook, Twitter, or LinkedIn. It’s not a good look.