This former employee who was fired for social media posts will get his job back. But, your employees probably won’t.

At dinner the other night, someone asked me what I did for a living. So, I told that person that I’m a blogger dammit and people respect me for it an employment lawyer.

She responded with words to the effect of, “When are employees going to learn that there is no such thing as free speech?”

Amen.

Whether an employee is at work or off the clock, just about anything s/he says can impact her/his job status. That’s especially true on social media, where there is a directly proportional relationship between idiocy and virality. Generally, the result is a bad look for both employee and employer. And since most employees are more replaceable than they think they are, online idiocy generally translates into unemployment.

Take, for example, a police detective from the midwest. According to this report from the Akron Beacon Journal, a 23-year veteran of the local police force was fired in February for violating the police department’s rules for social media use. On Facebook, he questioned why Nation of Islam leader Louis Farrakhan hadn’t been “offed,” which didn’t go over well with others and grabbed some media headlines.

Your employees may have strong opinions about Mr. Farrakhan too. But, hopefully, they wouldn’t go online and call for his death, especially if they work in law enforcement where their job is to protect and serve. But, generally speaking, online death wishes — even in jest — don’t go over well. So, you could see why this veteran detective lost his job.

But, ten months later, he is going back to work for the same police department that fired him in February. That’s right. An arbitrator has ruled that the department must reinstate him. But, that’s the overall exception to the rule.

Or, put differently, why won’t your employees get a second bite at the apple in your workplace if they do bad things on social media?

1. You operate a private business. As my astute dining companion noted, employees don’t have free speech rights. That’s especially true in the private sector. Public employees have limited free speech rights, with which I will not bore you today.
2. You don’t operate in a state with off-duty conduct laws. States like Colorado and California, among others, prohibit employers from taking adverse action against employees for engaging in lawful off-duty activities while off-duty. Most states, however, have no such laws.
3. You don’t have a unionized workplace. In a unionized workplace, an employer can terminate an employee for just cause. In your workplace, you can have a reason or no reason at all to terminate an at-will employee’s employment at any time without notice.
4. Your employees don’t often engage in protected concerted activity online. The National Labor Relations Act protects the rights of employees to act together to try to improve their pay and working conditions, with or without a union. One person calling for the death of Mr. Farrakhan is not protected concerted activity. That person is acting alone. Even two employees calling for the death of Mr. Farrakhan is not protected concerted activity either because those knuckleheads aren’t working together to try to improve their pay and working conditions.
5. Your company’s public image matters. LinkedIn users identify their employers. Many Facebook and Twitter users do the same, which is where more of the employee shenanigans go down. So, when an employee acts the fool online, it’s often easy to connect the dots from employee to employer. The news reports where your business ends up above the fold for the wrong reasons practically write themselves. Mitigating the damage often means eliminating the cause.

So educate (and remind) your employees that there is no such thing as free speech. Especially not on social media.