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Jan 14, 2015

By Eric B. Meyer

You know all that stuff you read on the Internet about employees who can badmouth their boss on the Internet, all in the name of free speech, and not get fired for it?

Yeah, about that.

Here’s a recent opinion from the Fifth U.S. Circuit Court of Appeals in New Orleans about a 25-year police sergeant, a public employee, whose First Amendment freedom of speech rights were not violated when she was fired for posting Facebook comments, which were critical of her boss.

Limits to public employee free speech rights

While public employees have certain free-speech rights, on Facebook or otherwise, an employee’s First Amendment protections are only triggered when she is speaking as a citizen on a matter of public concern.

While the appellate court agreed with the plaintiff that her Facebook speech was in her capacity as a private citizen (as opposed to in the ordinary scope of her duties as a police officer), it concluded that her speech was not on a matter of public concern.

Instead, it viewed her speech as that of someone who is pissed at her boss.

Think it’s hard for an employee to establish a First Amendment violation in the public sector? Remember, my private-sector company readers, there is no such thing as free speech in the private sector. If a single employee blasts the boss on Facebook, that employee can be held accountable for his or her actions. (Unless, of course, the speech constitutes protected concerted activity, which generally involves more than one employee discussing workplace conditions).

More constructive ways to deal with work issues

But, here’s a tip to help avoid this mess altogether: Remind your employees that, while online speech is one way to discuss work problems, there are more constructive ways to get problems solved.

That is, encourage them to address these problems directly with a supervisor, HR, or other appropriate decision maker.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

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