Is it legal to be fired over an on-line post not incriminating anyone directly?

I made a post saying that asking my boss for a raise is like asking a foreigner for directions. Among the comments that post my friends had brought up the first time I was supposed to be fired for getting in an argument with a co-worker for standing up for myself. I had answered saying, “He’s lucky he didn’t fire me the first time or I would’ve taken a dump on his desk and crop dusted his face on the way out”. There’s a bit more but nothing worse. I never mentioned the company name or any employees. Is this legal to be discharged over? I was told it was threatening and an act of violence.

Asked on October 18, 2011 under Employment Labor Law, Ohio

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

As a general rule, you can be terminated for this type of on-line activity. In an "at will" employment work arrangement an employer can set the terms and conditions of employment as it deems fit. This includes discipline/discharge for comments made on social networking sites. So unless you have an employment contract or union agreement that prohibits your dismissal for this, or your termination violated existing company policy, or your treatment constituted some form of actionable discrimination, you have no legal claim.

There is, however, an exception regarding the firing of an employee for making negative on-line comments about their employer. If the griping amounted to what is called "protected concerted activity" under federal labor law, an employer cannot fire a worker. In some cases it has been found that Facebook posts may be no different than workers gathering around the water cooler to discuss working conditions. The National Labor Relations Act prohibits employers from punishing employees for talking about wages or workplace conditions or forming a union (whether or not they are union members). The idea is to enable communication among workers in order for them to decide if a union is necessary.

However, based on the facts presented it would appear that your comments were not protected and your discharge was legal. If you still have questions you should consult directly with an employment law attorney in you area.


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