Technically, yes.
While the First Amendment gives you freedom of speech, it doesn’t protect you from private employers. In New York, there are a few legal shields in place.
Your New York Rights: What You Should Know
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Off-Duty Conduct Protection: Enjoy your life outside work! Although the law is significantly flawed, New York law technically prevents discipline for lawful off-duty activities like political activism or using legal cannabis. Word to the wise, though: there’s a pretty big exception built into the law, so it might not protect you from a boss who is really interested in getting rid of you.
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Political Expression: Feel free to share your political thoughts! New York protects your right to engage in political discourse online, even if the climate gets heated. Same law, though, so same caveat.
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Talk the Talk with Co-Workers: Thanks to the National Labor Relations Act (NLRA), discussing workplace issues on social media with colleagues can be protected, union or not. Check out our blog post on what constitutes protected concerted activity: https://www.satterlaw.com/speaking-up-on-behalf-of-your-coworkers/
What’s a Worker to Do?
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Keep Your Profile Private: Know Your Privacy Rights: New York is among the states that protect your privacy online. Your boss can’t demand your social media passwords or access private accounts. If they punish you for posts discovered through shady means, you might have a case.
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Recognize When Unfair Application of Social Media Policies Means Something More: If a workplace social media policy is being applied unevenly, pay attention to who is being targeted. If it appears that the targets all seem to come from one protected class (race, color, creed, national origin, gender, age, ability, union supporters, whistleblowers) – call your workplace lawyer!
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Word to the Wise: Tread Carefully!: Even with the protections described above, avoid posting things that could be considered defamation or violate company policies, and don’t forget – these rules are a thin layer of protection. At the end of the day, if the employer can do an end-run around the law, they will, and you’ll be the one in the penalty box.
While New York law provides you the right to express yourself and engage in discussions about workplace issues—but it doesn’t do enough to protect those rights. If it seems like the boss is skating close to the edge, call a reputable workplace lawyer to help you decide how to proceed.
