Roseanne Barr is the latest example of a person who chose to ruin her career by making comments on social media that were offensive and rendered her unemployable, according to her employer.
Barr wrote a racist tweet at 2 a.m. after, she said, she took the medication Ambien. She called it “Ambien tweeting.” Immediately thereafter, her employer, Disney/ABC Television Group, canceled her “Roseanne” TV show.
Her termination reignited the debate over whether online conduct is protected by the First Amendment to the U.S. Constitution.
The short answer is that her speech is indeed protected by the First Amendment in that the government cannot arrest her for her online statements, prosecute her or sue her otherwise.
Too often, however, people believe that their opinion online is protected from other consequences, including employment ones, due to their misunderstanding of the rights afforded by the First Amendment.
The First Amendment states that Congress cannot make a law abridging the freedom of speech.
The private-sector employer is not subject to the prohibitions of the First Amendment and, therefore, those employers have a right to take action if the employee’s online or other conduct renders the person unemployable or requires discipline.
This is what I tell employees in training: “If what you do out there [online or otherwise] impacts your ability to work in here — you can’t work here anymore. So don’t post anything that would impact your ability to work here.”
Non-management private-sector employees do have a right under the National Labor Relations Act to engage in concerted activity for mutual aid and protection in the workplace.
Thus, a non-management employee could make negative statements about his or her employer if those statements relate to grievances about the workplace generally and not specifically to only that person, and if they are made in conjunction with other employees.
This limited protection is narrow and rarely applies in the cases I’ve reviewed for employers of employees making inappropriate comments online.
We should consider it’s 10:30 p.m. You are on your third beer, or third glass of wine, or you just took a sleep aid. You see someone post something about a controversial issue of which you strongly disagree.
You are angry about it, and you want that person to know it — even though you might not even know the person who is posting the sentiment.
Step back and ask yourself:
1. What’s in it for me? What am I getting out of posting this online? Why do I need to say this right now?
2. What’s the best /worst that can happen? What good will come from this? What bad might come from this?
3. When in doubt — don’t post.
Consider whether posting your controversial opinion is worth the end of your career, your finances, your reputation or your ability to find work in the future. And then step away from the computer.
A woman recently posted her opinion of Duke University’s admissions photo wherein she stated that she didn’t see a white male in the picture, and that when she took her son to visit Duke, it looked like the United Nations. That post was forwarded to her employer upon which the employer denounced what it felt was a racist post, and stated she was no longer associated with the organization.
Career done — over a post that added no value to her life and was construed as racist.
In today’s environment, whether you are at work, or after hours, you are always representing your employer. When posting something online, consider whether you want the very judgmental public to decide whether to be outraged, and potentially ruin your career.