Freedom of Speech is a right granted by The United States Constitution and enjoyed by all Americans. Employees exercising their free speech rights by blogging, posting on MySpace and YouTube may be surprised to learn limits of their Constitutional protections and should acquaint themselves with the term “dooced”.
Generally, employees of private sector employers have no constitutional “free speech” rights in the workplace and beyond. A quick civics’ lesson reveals that the Bill of Rights creates limits on the government’s actions to curb constitutional rights but does not typically restrain private employers from restricting an employee’s speech and expression.
Employees should pause before reporting to work wrapped solely in a flag, speaking their mind or blogging about the cruelties of their employer. Freedom of speech may only go as far as an employer’s tolerance for commentary. Pennsylvania courts have rejected wrongful discharge claims based on First Amendment protections asserted by employees who were terminated for criticisms of their employers. Geary v. U.S. Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974) and Wagner v. General Elec. Co., 760 F.Supp. 1146 (E.D. Pa. 1991).
Every employee owes the employer a duty of loyalty. The duty of loyalty owed by an employee to his or her employer is fairly broad and may encompass: "harmful speech, insubordination, neglect, disparagement, disruption of employer-employee relations, dishonor to the business name, product, reputation or operation, or nondisclosure of important information to the employer." Lee, Konrad, Anti-Employer Blogging: Employee Breach of the Duty of Loyalty and the Procedure for Allowing Discovery of Blogger’s Identity Before Service of Process is Effected.
Employee comments need not be made at work. Employees have been fired for blogging and posting on MySpace. In one of the more infamous cases Ellen Simonetti, a flight attendant for Delta Air Lines, was fired in 2004 because of her "Queen of the Sky" blog content. Simonetti posted provocative pictures of herself in a Delta uniform on a Delta airplane.
The airline, concerned for its image, found her inappropriate actions to be grounds for her termination. While the case remains unsettled due to an administrative discharge under bankruptcy laws, Simonetti has gone on to publish a book and is reportedly trying to seal a movie deal—all based on her termination from employment for her blog.
An employer’s power to terminate an employee for expressions of opinion is not absolute. Notable exceptions exist for “union activity”, anti-retaliation provisions of discrimination laws, and Sarbanes-Oxley Act compliance. An excellent discussion of the law in these areas appears in a New York Law Journal article by Jeffery S. Klein and Nicholas J. Pappas entitled When Private Sector Employer Fires Worker for Blogging.
Many employers have chosen to adopt policies on employee communications for a whole range of purposes. Policies can be helpful in defining an employee’s actions in the following areas:
- Authority to comment to news media on official matters
- Authority to communicate with or about customers and vendors
- Use of work time
- Use of employer’s computer and other resources
- Disclosure of confidential or proprietary information
- Prohibition on content of communication that is disloyal, discriminatory, inflammatory, threatening, or disparaging of the company, its employees, customers, products, etc.
Since many corporations have blogs, they have also developed blogging policies and guidelines. IBM’s Blogging Policy is an example of one employer’s approach.