*** Here’s Why He’d Probably Be Wasting His Money
Perhaps if you are an employer who does not frequently scroll through Twitter, “X” on a daily basis, you may be unaware of the promise Elon Musk recently made: “If you were unfairly treated by your employer due to posting or liking something on this platform, we will fund your legal bill. No limit. Please let us know.”
Of course, there are no details attached, including what “unfairly treated” means, what the “legal bill” can cover, and how to obtain that funding. However, let’s take Mr. Musk at his word and imagine an employee — recently terminated for posting objectionable content — filing a suit against their employer.
What would the grounds of that lawsuit be?
- The First Amendment only offers protection to public employees; private sector employers are well within their rights to take action against an employee for speech.
- While many states have laws protecting employees from being required to share social media access with employers, very few have any laws protecting employees from the consequences of what is posted on such accounts.
- The National Labor Relations Act (NLRA) gives employees the right to engage in protected concerted activity, i.e., two or more employees acting for mutual aid or protection regarding their terms and conditions of employment. Therefore, If the “X” post in question is not about the workplace, the NLRA wouldn’t provide any protection.
- Maryland’s wrongful discharge tort prohibits employers from terminating employees in violation of a public policy of the state. However, that public policy must be clearly defined, and as of this writing, there is no public policy giving employees carte blanche to post offensive social media content.
Labor and employment attorneys often caution that doing business in an “at-will” state like Maryland allows employers to terminate employees’ employment for any reason or no reason, but not for an illegal reason. The bottom line is that terminating an employee for social media activity is usually not going to be considered an “illegal reason.”
As always, the best defense for an employer is to promulgate reasonable policies that they enforce on a consistent and nondiscriminatory basis. If they do, they should be able to defend against any future lawsuit an Elon Musk-backed employee can throw their way.
