Facebook “Like” is Not a Valid Reason for Termination

An employee cannot be terminated for engaging in activities that are protected by public policy.  Such protected activities include refusing to violate a law, engaging in a legal duty such as jury duty, or exercising a legal or constitutional right.  If an employer fires an employee for any of these reasons, the employee likely has a case for wrongful termination.

Recent Case

Recently, former employees of the Sheriff’s Office in the City of Hampton, Virginia filed a lawsuit alleging they were wrongfully terminated after exercising their constitutional rights.  The plaintiffs included former deputy sheriff Daniel Ray Carter, Jr. and his former co-workers.  They worked for the office during an election in which the incumbent sheriff, B.J. Roberts, was running.  The employees each “liked” the campaign page of Sheriff Brown’s election opponent, which angered the sheriff.  In a speech to the office, the Brown told his employees that he knew of their support for his adversary as demonstrated by their Facebook activity.  The Brown also threatened that, if he were re-elected, any of his opponent’s supporters would lose their jobs.

Sheriff Brown ultimately won his reelection and subsequently terminated each of his employees who had “liked” his opponent’s Facebook page.  Carter and his now former co-workers filed a lawsuit against the Sheriff’s Office, alleging they had been wrongfully terminated in violation of public policy.  Specifically, they alleged they were fired for exercising their rights of free speech protected by the First Amendment of the United States Constitution.

The Court Decisions

At the trial level, the court found for the Sheriff’s Office.  The court reasoned that clicking a single button to “like” a Facebook page was not sufficient activity to qualify as protected speech.  Previous court decisions had held that expressions on Facebook statuses and the like did qualify as speech under the First Amendment, however the district court in this case stated there was a clear distinction between publishing a status message with words and a single click of a mouse.

The case was appealed to the United States Court of Appeals for the Fourth Circuit, which overturned the decision of the lower court.  The circuit court stated that when a person “likes” a particular Facebook page, their “like” is communicated to all of their Facebook connections in several ways through notifications, newsfeeds, and on their own profile page.  Therefore, the court decided “liking” a political page is akin to showing support for a campaign in other ways, such as placing a political sign in your front yard.  Therefore, a click of a mouse to “like” a page could be considered protected political speech under the First Amendment and would then be wrongful grounds for termination.

This precedent sends a warning to employers that they may not simply fire employees for disagreeing or disliking certain online activities, such as “liking” something on Facebook.  Furthermore, activity on social media sites is becoming increasingly protected activity in general.  If you believe you have been wrongfully terminated for protected activity or any other reason, it is important that you contact an employment attorney at Pershing Square Law Firm to discuss a possible case.