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McOmber McOmber & Luber, P.C.

Business & Employment Lawyers Red Bank & Marlton New Jersey

732-842-6501
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Can I Get Fired for Discussing Politics on Social Media?

Yes, you can get fired for discussing politics on social media. New Jersey is an at-will employment state which means a private employer can terminate you for any reason or no reason at all.  Therefore, if an employer concludes that your speech is causing other employees to feel uncomfortable or is harming or interfering with its business, you could be disciplined or terminated. This extends to posting on social media, wearing political clothing, pins, masks, etc.  Make sure to read your employee handbook to find out what conduct violates your workplace rules.

Facebook, Twitter, Instagram, LinkedIn and the like, have changed the way we express our opinions.  If you are in the workforce and use social media, this new frontier can put you at risk. This is what you need to know.

The First Amendment May Not Protect You

  • Most people think that the First Amendment’s right to freedom of speech applies to them and they can say whatever they want in the workplace.  False.  Unless you work in the public sector (local, state, or federal government), this right does not protect you. The First Amendment prohibits governments from infringing upon your right to speak publicly as well as public employees from speaking freely. And even in the latter case, governments and public employers can adopt reasonable rules to regulate speech.

Can I Discuss Politics on Social Media?

  • Yes, but you may be at risk. New Jersey is an at-will employment state which means a private employer can terminate you for any reason or no reason at all.  Therefore, if an employer concludes that your speech is causing other employees to feel uncomfortable or is harming or interfering with its business, you could be disciplined or terminated. This extends to posting on social media, wearing political clothing, pins, masks, etc.  Make sure to read your employee handbook to find out what conduct violates your workplace rules.

However, if you believe your employer is targeting you, not due to your political speech, but because of your race, sex, age, religion, national origin, disability, or other protected characteristics, you may have a discrimination claim.  In addition, an employment contract or a collective bargaining agreement that spells out terms of discipline or termination may protect you.

 “Concerted Activity” Is Legally Protected

Employees (union and nonunion) who share information in an effort to improve their working conditions are protected under The National Labor Relations Act (NLRA).  This is considered “protected concerted activity” because it is for the “purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.” www.nlrb.gov.

Examples of protected concerted activity may include employees discussing their concerns about salary or working conditions or employees wearing political buttons or shirts referring to a topic protected by the NLRA, such as “X candidate favors improved healthcare.”

Again, to receive protection under the NLRA, your political speech or expression must relate to working conditions and must have some connection to group action or an attempt to bring a group complaint to the attention of management. www.nlrb.gov

Comments on social media that are “mere gripes not made in relation to group activity among employees” is not protected. Likewise, speech that is profane, defamatory or malicious against the company is not protected.  NLRB v. Honda of America Manufacturing, Inc.  An employer will also have a duty to act if the political speech infringes upon a protected group (based on their gender, race, age, disability etc.) and creates a hostile work environment for other employees.

If You Are a Whistleblower, Your Speech May Be Protected

The New Jersey Conscientious Employee Protection Act (CEPA) protects whistleblowers who speak out about their employer’s potential legal violations. www.nj.gov. CEPA prohibits employers from retaliating against employees who have complained about a practice that the employee reasonably believes is unlawful or indisputably dangerous to the public health, safety or welfare.  Several federal whistleblower laws also protect employees from disclosing fraud such as the False Claims Act.

Can an Employer Ask Employees for Passwords to Their Personal Social Media Accounts?

  • No.  In 2013, New Jersey enacted a social media privacy bill to protect employees’ personal social media accounts. P.L. 2013. C. 155. The law prohibits employers from asking current or prospective employees for usernames, passwords, or access to a personal account. www.njleg.state.nj.us.  An employer cannot ask you to waive this right.
  • There are exceptions. An employer may be legally required to access an employee’s personal account to investigate work-related misconduct happening on that account if they have specific information of wrongdoing.  An employer can view an applicant’s or employee’s social media posts if they are in the public domain.  Finally, an employer can request access to e-mails and social media accounts that an employer provided.

Expressing one’s self on social media is at an all-time high and there are a lot of evolving rules and grey areas.  If you feel your employer mistreated you because of your social media posts, you may have a discrimination or unfair labor practices claim and should consult with an attorney.  McOmber McOmber & Luber have experienced employment attorneys that can help you navigate these ever-changing waters. Please call our office in Red Bank, New Jersey at 732-842-6500 or our Marlton, New Jersey office at 856-985-9800 to find out more.

Related FAQs

  • What is wrongful termination?

    Wrongful termination arises when an employee believes the employer illegally fired him or her. This occurs when an employee is fired and that firing breaches an employment contract or employment law.

    Read More
  • How do you prove wrongful termination?

    If your contract lays out grounds for termination the employer cannot fire you on other grounds. The contract itself can help prove wrongful termination by showing the grounds acceptable for termination and any policy or procedure articulated for termination.

    Additionally, to show that wrongful termination occurred you must show that you engaged in a protected action and that the protected activity was the reason for the termination.

    Read More
  • What Does “At-Will” Employment Mean?

    “At-will” employment means that an employer or employee may terminate the relationship at any time, without reason or cause. An employer may not, however, terminate a worker’s employment for unlawful cause, such as in violation of NJLAD, in retaliation for reporting harassment or discrimination in the workplace, or for whistleblowing. If you suspect you’ve been terminated for an unlawful reason, you may have grounds for a wrongful termination claim.

  • Can I Be Wrongfully Fired Even if I am Employed At-Will?

    Yes. There are multiple wrongful termination standards that protect employees in at-will employment relationships. This ensures that there are a multitude of scenarios in which a worker’s rights are protected, even for non-contracted work. For example, if a termination is a violation of public policy or of an implied contract, it can be disputed.

    Read More
  • Am I Entitled To A Warning Before I Am Terminated?

    No, you are not entitled to a warning before you are terminated. New Jersey is an “at-will” employment state, meaning that there is no legal obligation to provide advanced notice to an employee facing termination.

    Read More
  • Am I a Member of a Protected Class?

    The New Jersey Law Against Discrimination (NJLAD) firmly establishes that an employee cannot be fired for being a member of several protected classes. These include:

    • Race;
    • Age;
    • National origin;
    • Gender;
    • Disability;
    • Sexual orientation; or
    • Pregnancy.

  • Is my employer required to give me a severance package?

    New Jersey law does not require severance packages, but some employers offer them in the context of separation agreements; always ask a lawyer before signing a separation agreement.

    Read More
  • What Role Does My Employment Contract Play In Helping My Wrongful Termination Case?

    Your employment contract could potentially help your wrongful termination case. Another exception to at-will employment is the existence of an employment contract which sets forth:

    • Acceptable grounds for termination; and
    • Procedures and protocols to be followed by an employer when termination of employment will be sought.

    Read More
  • Is Getting Fired Over Email a Form of Wrongful Termation?

    In the many states with at-will employment laws, employers are generally within their rights to fire a worker at any time, in any manner – including letter, phone call, or e-mail, provided the firing is not discriminatory or based on a person’s protected class status.

  • What Is the NJ WARN Act?

    The New Jersey Millville Dallas Airmotive Plant Job Loss Notification Act (NJ WARN) expands part of the Federal WARN Act by requiring notice even when the employment losses result from a sale of a business.

    The NJ WARN Act also contains strict provisions with respect to job transfer circumstances and penalties for employers violating the Act.

    Read More

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Red Bank Office

  • 54 Shrewsbury Avenue, Red Bank, NJ 07701
    732.842.6500
    732.530.8545

Marlton Office

  • 50 Lake Center Drive Suite 400, Marlton, NJ 08053
    856.985.9800
    856.263.2450

Newark Office

  • 60 Park Place Suite 307, Newark, NJ 07102
    973.878.9040
    973.310.5216

New York Office

  • 11 Broadway, Suite 615 New York, NY 10004
    929.566.1300

Philadelphia Office

  • 1650 Market Street, Suite 3600 - No. 973 Philadelphia, PA 19103
    267.777.7800

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