By Terri Lee Ryan

The NLRB (National Labor Relations Board), a federal agency that brings labor-related complaints on behalf of workers, has seen the number of cases involving social media skyrocket from zero to more than 100 over the past five years!

One of the more popular cases pending was filed in 2011 in Virginia by Daniel Ray Carter. He had been fired by his boss, the then sheriff in Hampton, VA, based on the fact that Carter was not “entirely onboard” with his re-election efforts. Carter had used the “like” button on Facebook to support the sheriff’s rival, while working for him. The sheriff saw the “like” on Carter’s Facebook page of his opponent and after he got elected, he fired Carter from his deputy sheriff’s job.

The question being debated is whether Carter is protected under his First Amendment rights or not? There is no simple answer to this complicated question. And the consequences may differ between the private and public sector employers.

Some analysts say that private employers do not have an obligation to recognize their employee’s free speech rights and because Wisconsin, for example, is an “at will” employment state that a private employer may discipline or terminate you without a reason, as long as the adverse employment action is not based on your association with a protected class.

Clearly, monitoring and creating legislation for the use of and determining the potential liability when using these sites, is needed. This will be a hotly contested topic for most of us that want to say whatever we want on our social media sites without repercussion from our employers. Most people believe that they are protected by their First Amendment rights under federal guidelines, yet much of the litigation is falling under state jurisdiction, so there is no uniformity in the law.
The ongoing debate of whether we have a right to post anything we chose to or to support whatever we want on social media sites without repercussion, even if it’s a rival to our company, will continue until federal and state laws are created that clearly defines our rights as employees and employers and where to draw the line.

Until clear guidelines are established as to what rights you have using social media sites, I recommend that you pay close attention to what you say on these sites and keep the information you post within your circle of friends. Yet, even then it is still risky to post anything that may threaten your reputation or job. Others may use what you say to disparage you, so take caution and pay attention to who your audience is when you are posting.