Business & Real Estate

Venting on social media? Yes, you can, but the First Amendment won't save your job

This screenshot of Faith Linthicum's GoFundMe shows the funds raised have exceeded her goal.
This screenshot of Faith Linthicum's GoFundMe shows the funds raised have exceeded her goal.

Last summer, a Google engineer lost his job after posting a memo on internal message boards saying that women had a tendency toward neuroticism and empathy, making them less suited to be engineers than their "systemizing" male counterparts.

In March 2011, a phlebotomist was terminated after she took to her Facebook page to post profane comments about her co-workers who she said blamed everything on her.

In 2001, an African American shipyard worker for Avondale Industries was dismissed from her job after she called her supervisor a "Klansman" within earshot of other African American workers.

What those cases illustrate is something that's a surprise to many U.S. citizens: The First Amendment's free speech guarantee doesn't apply to most employees. Indeed, legal experts said, private employers may well have an obligation to take a disciplinary action if an employee’s speech is injurious, offensive, threatening, intimidating or coercive.

"The constitution says the free speech guarantee is: ‘Congress shall make no law restricting the freedom of speech,'" said Leslie Gielow Jacobs, a law professor at Sacramento’s McGeorge School of Law. "It only applies to the government, and it only limits what government does to private people … But it does not limit a private employer."

Sacramento-area residents recently got a lesson in this after Kaiser Permanente fired nurse Faith Linthicum, who had worked at its Roseville Medical Center, over her Facebook comments. In one of them, she said that Stephon Clark, the unarmed black man killed March 18 by Sacramento police, "deserved it."

After losing her job, Linthicum went to the crowdfunding site GoFundMe.com seeking money to help pay her bills. The headline for her campaign was "RN Fired for exercising 1st AMD."

Kaiser, however, in its statement noting that it had let an employee go, said free speech only goes so far, stating that it does not tolerate hate or discrimination and has a long history of embracing diversity and inclusion.

"We want to emphasize that the comments expressed by this employee … do not in any way reflect Kaiser Permanente's views or actions," said Yvette Radford, the company’s vice president of external and community affairs. "We are very much a part of the wonderful and rich diversity of the communities we serve and feel a deep responsibility to them."

That statement provides what Jacobs said is likely the company’s legal basis for terminating the employee. Rather than crafting specific social media usage policies, said Dr. Kimberly Elsbach, a professor at the UC Davis Graduate School of Management, many businesses lean upon mission statements promoting diversity and discouraging hostile environments in their workplace. That's because many social media policies have been found to violate key provisions of a federal labor law that protects workers' rights to organize job actions and speak out about their wages, hours and other terms of employment.

This federal law, known as the National Labor Relations Act, created the five-person National Labor Relations Board that regularly makes decisions on what constitutes fair employment practices, said David W. Tyra, an attorney with Sacramento’s Kronick Moskovitz Tiedemann & Girard. For decades, this body has upheld terminations when companies can prove that the discharge interferes with the company's ability to comply with state and federal equal-employment laws, but it also has just as consistently struck down any social media policies that it views as having a chilling effect on a worker's rights to organize or to discuss terms of employment.

Go to the NLRB website, Tyra said, and search for social media or Facebook, and you'll find many cases involving employee posts that have landed before this body. Certainly, not all employees lose their appeals, but the NLRB did uphold company management decisions to terminate the engineer, the phlebotomist and the shipyard worker. The engineer is suing Google for wrongful termination.

The key to employees winning, Tyra said, is that their posts or remarks must be found to be enlisting fellow workers' support in making changes at their workplaces. The NLRB has said that employers can ban the use of provocative language as a precaution against bitterness and discord in the work environment.

In California, both case law and Labor Code Section 96(k) give employees the right to engage in lawful, off-duty conduct, Jenness and Tyra said, but if that lawful, off-duty conduct poisons the work environment, Section 96(k) will not protect the employee from discipline. The Kaiser nurse’s conduct was lawful and occurred off duty, Jenness said, but her employer responded after the comments motivated patients to question the nurse's qualifications as a caregiver.

"Another much more common example is an employee who sends a coworker an unwelcome sexually explicit text after hours," Jenness said. "Even though the text was sent off-duty, such a text would still violate the employer’s anti-harassment policy and would subject the employee to discipline, up to and including immediate termination. The employer would be subject to liability under California law if it did not act to discipline the employee who sent the sexually explicit text. "

In the case of the Google engineer, the NLRB noted, female employees had complained to human resources and management about the memo, and two female job candidates had withdrawn applications after learning about it. Similarly, co-workers of the phlebotomist had shared her Facebook posts with human resources.

In the Avondale case, the NLRB panel also ruled that the company had justification for concerns that other African American workers might chafe at working for a supervisor who a co-worker had identified as a Klansman.

Even before social media, workers could have faced disciplinary actions for remarks made on or off the clock that led to a hostile work environment, said Julia L. Jenness, an attorney with Sacramento’s Boutin Jones, but it was harder to make such cases back when the remarks were made around the water cooler.

It's easier now with social media. Registered nurse Alice Benjamin, who's appeared on "The Dr. Oz Show" and "The Doctors," said she was told early in her career: "Never send an email unless you're ready for it to be plastered on a billboard." While many people think of social media as talking with friends on a phone call, she said, it's not.

"Social media is a very tricky space. It was originally intended to just socialize," she said. "Now it's a public forum where people can see your comments, screen-shot your comments, share your comments. All of a sudden, something you shared that you thought was in confidence is misconstrued or taken out of context."

Annually in a Gallup Poll, nurses are ranked as the most trusted professionals in the United States, Benjamin said, but that trust easily can be eroded if people perceive them as biased. That's how hundreds of Facebook users described Linthicum's comment that Clark deserved to be killed.

No one deserves to die, said RN Shaheen Lebastchi, who works in Lodi. He said he would feel obligated to report a nurse who made such a comment to his management.

"I don’t manage nurses, but I manage CNA’s (certified nursing assistants)," Lebastchi said, "and if one of my CNA's was saying … that they let a patient's call light stay on longer because they have a swastika tattoo or that they don’t give a patient the care they needed because of that, I wouldn't let them take care of my patients anymore .... It's not OK."

Lebastchi said he learned as part of his training on medical privacy laws that the First Amendment does not protect his employment, and he offered up a rule-of-thumb also shared by all three legal experts consulted by The Bee: "If you don’t work for the government, your First Amendment rights don’t apply."

Your social media work guide

National Nurse magazine in 2013 warned nurses about a growing number of disciplinary actions related to the use of social media:

  • Facebook is like a power tool. Used properly, a power tool can yield amazing results at blazing speeds with less effort. Used improperly, it can cut off your hand. Make sure you are controlling the tool, and not the other way around.

  • Any comments or personal information you share on the internet "lives forever." Consider who is really your friend, what your purpose is in posting and whether the thoughts you're posting should really be said out loud to anyone.

  • Many people get fired for complaining about their bosses on Facebook. It's difficult for supervisors to find out about private face-to-face conversations with friends or co-workers. Facebook, on the other hand, provides a ready-made trail.

  • A comment you perceive as innocuous can lead to your being fired, sometimes because it uses foul language, sometimes because it was posted during work hours and other times because it's perceived as breaching patient privacy.

  • Generally, your speech is protected under the National Labor Relations Act if you are working together, or at least trying or intending to work together, with other employees in identifying and acting on workplace problems. Don't be afraid to talk about wages, hours or other terms and conditions of employment.

Want to search for memos about social media from the NLRB's General Counsel? Visit https://www.nlrb.gov/reports-guidance/general-counsel-memos.

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