Are employees protected from termination for social media posts?


Curt Schilling, former superstar turned ESPN announcer, was prominent in the news last week because he got fired for comments he made about the North Carolina “bathroom” law. (If you are not familiar with what that is you click here.) Many people may have thought that Schilling was protected in his comments, so what is the deal?

NLRB protections

Many of us have read time after time how the National Labor Relations Board has protected employees for making comments on Facebook by ordering their reinstatement after they were fired. Shouldn’t Schilling be afforded the same protection?
Unfortunately for Mr. Schilling the answer is “no.” The NLRB deals with protecting people for exercising their rights under the National Labor Relations Act which protects people engaged in “protected concerted activity” around “wages, hours and working conditions.” Since Schilling comments did not involve these things he was afforded no protection.

What about free speech?

Surely Schilling was protected by the right to free speech you may think. The answer there is NO. The right to free speech deals with an individual’s action as it relates to the government. Schilling could have stood on the North Carolina capital steps and protested as much as he wanted and he could not have been arrested because his right to free speech, but that does not apply to companies. There is no right to free speech in a company and you can be terminated for saying something that embarrasses the company.


What got Schilling fired was the common law concept of employment-at-will. Barring an employment contract an employee can be fired for anything that does not violate some federal or state law. Not all states recognize employment-at-will so be sure you are aware of the restrictions in your jurisdiction.
The result of all this is that Schilling is out of work for embarrassing ESPN and supposedly going against company policy. He expressed an opinion they did not agree with and they fired him for it. Perhaps not the best way to have dealt with it, but certainly within their rights to do.
If you wish to exercise you right to fire an employee under employment-at-will make sure you are not violating the NLRA or federal and state statutes before you proceed.
Hat tip to attorney David Barron for the inspiration.

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