But it’s my first amendment right, why Am I fired?!

By Marci Jordon

Over the last year, social media has played a part in the termination of many individual’s employment. A person has posted a video, a picture, or made comments that go against their company values, policies, or stance.

After their post gains attention, the next thing they know they are called into HR and terminated. This is usually followed by the assertion that “it was my First Amendment Right,” or, “It’s not fair.”

So, the question posed, is this really a violation of their rights or just plain ‘ole poor choices? The First Amendment Rights regarding Freedom of Speech states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances.

In the context of free speech and employment, how do the two intersect? Free speech is broken down into three distinct categories: Rights, Responsibilities, and Consequences.

Rights

Everyone has that right within reason. Your freedom of speech cannot cause immediate or deadly harm to those around such as yelling, “Fire!” in a movie theatre or, “Somebody’s shooting!” in a crowded mall.

Other than those examples, and similar phrases, you can speak your mind whether that be in public or through various social media platforms.

Responsibility

It is a person’s responsibility to know who their audience is while exercising this right. If it is on social media, who will see this post? Is this post public or private? How will this post be received? Now if the comments are made in person, again, who is the audience? Is this in a group of friends? Will someone record it on TikTok and upload it?

Consequences

The consequences, or outcomes of exercising your free speech, can result in a good experience with positive feedback, a neutral experience, or a bad experience.

As we see in the virulent craze of social media posts and videos today, a person might have a popular post, shared and echoed by many people that feel the same way.

This does not mean that your employer may not want to pursue some form of consequence against you, as your
post is not something they want to be related to. The question always comes up on how a company can do this to an employee.

There are two very simple and straightforward answers. First, Texas is an “At Will” state which means, an employer can hire, fire, or promote for any reason if it is not discriminatory.

Second, and more importantly, when a person is hired, they sign and receive an Employee Handbook. Whether it is in paper form or electronic, it states that you have read, understood, and agree to abide by the policies in the Employee Handbook.

In most cases, the handbook includes a Code of Conduct, Ethical Standards, prohibited activities, and Mission Statement of the Company. What these policies illustrate is how the company expects an employee to conduct themselves.

Remember that even though you may be “off the clock” some of your actions could still have ramifications on your employer. By posting, for example, an offensive rant with offensive slurs against people of color, the LBGTQ+ community, or disabled individuals, the action taken could be immediate.

Typically, a termination after a controversial statement is followed by a company statement letting the public know that this person is not a representation of the company’s standards and values.

So, before you exercise your First Amendment rights, remember the three parts: Rights, Responsibilities, and Consequences.

It can prevent you from going viral for the wrong reason, a potential public embarrassment, and possibly having to look for a new job.

Source: Texas Workforce Commission