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Free Speech in the Workplace-No Such Thing!

On Behalf of | Sep 6, 2015 | Firm News |

A Philadelphia teacher was fired by the school district for writing a blog in which she called her students “disengaged lazy whiners” and “disobedient, disrespectful oafs.” She also wrote “[t]hey curse, discuss drugs, talk back, argue for grades, complain about everything, fancy themselves entitled to whatever they desire, and are just generally annoying.” The teacher sued the school district to get her job back asserting that her right to free speech had been violated when she was terminated for her words. The U.S. District Court for the Eastern District of Pennsylvania dismissed the case finding that the school district was entitled to terminate. The Third Circuit Court of Appeals upheld the lower court ruling finding that the school district’s interest in preserving the trust of its students and parents outweighed the teacher’s right to free speech. One Appellate Judge dissented finding that there was enough question of fact on the reasons that motivated the termination to warrant a jury trial as the teacher had presented evidence that she might have been fired for media interviews she did after the blog went viral.  Had the full Appellate panel agreed that the termination was in retaliation for things she said in media interviews, she might have had a chance.  However, the two other judges did not consider that evidence to have bearing on the issue of why she was terminated. So, what should we be allowed to say about our employers on our own private social media sites? Not much, I will caution you. Many amongst us fall into the same trap of believing that our First Amendment rights are absolute protection, allowing us to say whatever we want whenever we want to say it. Those rules don’t apply when you work as an “at will” employee where the employer can terminate you for any reason as long as it isn’t a discriminatory reason. The employer can certainly terminate you for making disparaging statements about the company, a supervisor, a co-worker, a customer, etc. You are going to be especially susceptible if you work for a company that handles sensitive HIPAA information that you may inadvertently reveal. Your best practice is to avoid talking about work on personal blogs entirely. Why take the risk? You should maintain complete separation between your work and personal lives so as not to tempt fate. You should presume that everything you post on the internet, even if its on a personal Facebook account just for “friends,” is now in the public domain for all and is likely to make its way back to your employer.  Also follow the age old adage “if you have nothing good to say, don’t say anything at all.”