Social media has given a platform to nearly anyone with internet access, and many people use that opportunity to share their views with their friends and followers, as well as the general public. Many statements could be considered objectively offensive by modern standards regarding race, gender, and other issues, while others might be more subjective. Some people have faced adverse actions from their employers, including firing, because of statements on politics and other issues made on social media, and other acts outside work. Do state or federal employment laws protect workers engaging in these types of activities? The answer is complicated. Federal law only protects workers in certain specific circumstances, and few state laws address political affiliations or other activities as they pertain to employment.
Two recent incidents demonstrate the potential impact of careless or offensive statements on social media. In December 2013, a public relations director for an internet company sent a tweet just before boarding a plane bound for South Africa. The tweet, a joke referencing the issue of AIDS in Africa, caused such an immediate uproar that she was out of a job before her flight reached its destination. More recently, the communications director for a Republican member of Congress resigned her position after writing a post on Facebook criticizing President Obama’s daughters in terms generally considered offensive.
Some people have chosen to respond to online statements they find egregiously offensive by notifying employers–at least one blog, Racists Getting Fired, chronicles efforts to report racially offensive statements. Most of these types of responses have involved people making statements widely considered to be racist, sexist, or otherwise bigoted or offensive. One concern regarding this practice, according to activist and writer Tressie McMillan Cottom, is that it “sets a terrible precedent of witch-hunts for good people who make a few mistakes.” The door can swing both ways, too, as evidenced by reports that a police officer in St. Louis contacted an employer, in an official capacity, regarding an employee’s tweets that criticized the police department.
Employment laws at the federal level do not protect people who work for private employers from adverse actions based on political affiliation, activities, or speech, with only limited exceptions. The Civil Service Relief Reform Act of 1978 protects federal government employees from discrimination based on “political affiliation.” 5 U.S.C. § 2302(b)(1)(E). The Workforce Investment Act prohibits similar types of discrimination in federally funded workforce development programs. 29 U.S.C. § 2938(a)(2). The National Labor Relations Act protects employees of covered employers against discrimination or retaliation for activities related to labor organizing. 29 U.S.C. § 157.
Laws in New York, California, Washington, D.C., and Puerto Rico prohibit employment discrimination based on certain types of political activity. See N.Y. Labor Law § 201-D, Cal. Labor Code § 1101 et seq., D.C. Code § 2-1402.11(a), 29 L.P.R.A. § 146. Protected activities include running for office, campaigning for a candidate for office, fundraising for a candidate or campaign, and advocacy for a party or candidate. These laws typically only protect employees for activities conducted outside work.
None of this addresses the original question, which is whether employment laws prohibit adverse actions based on an employee’s offensive or controversial, but not expressly illegal, activities or statements. New York law includes some protections for “recreational activities” undertaken outside of work, but in general neither federal nor state law prevents an employer from taking adverse action against an employee for public statements or activities that are not related to his or her employment.
If you need to speak to an employment discrimination attorney in New Jersey or New York, contact the Resnick Law Group today online, at 973-781-1204, or at 646-867-7997.
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In the Matter of Nicholas R. Foglio, NJ Supreme Court Rules Towns Must Provide “Legitimate” Reason for Hiring Less-Qualified Candidates, The New Jersey Employment Law Firm Blog, November 1, 2011
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