Image: FJohn Galliano
BENOIT TESSIER  /  Reuters
John Galliano, the famed Dior fashion designer, lost his job after a drunken anti-Semitic tirade he made at a Paris bar was captured on video and ended up on YouTube.
By Eve Tahmincioglu
msnbc.com contributor
updated 4/4/2011 6:28:53 PM ET 2011-04-04T22:28:53

Once upon a time you could make a drunken rant at a bar, write about your secret passions at home, or complain about your manager to friends after work, and your boss would never know about it. But today, thanks to social media, all bets are off.

John Galliano, the famed Dior fashion designer, lost his job after a drunken anti-Semitic tirade he made at a Paris bar was captured on video and ended up on YouTube. To less media fanfare, Marilyn Tagocon lost her job at JPMorgan Chase last year, allegedly for refusing to stop writing her blog on historical fiction. And Dawnmarie Souza, an employee for an ambulance company in East Haven, Conn., got canned after complaining about her manager on Facebook to other coworkers.

Social media — including blogs, Twitter, Facebook, YouTube and the rest — have given people everywhere a chance to express themselves and a chance to be heard, sometimes whether they want to be heard or not. It’s a new age of freedom of speech and communication, but your employer wants you to shut — or at least control — your cybermouth.

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Things are happening so fast on the Web that companies are embracing social networking when it comes to promoting their products and services, while simultaneously kicking it to the curb when it comes to average working stiff’s privacy and free speech rights. In many cases courts have found that private employers largely have the right to fire workers for what they do in cyberspace, but the laws regarding privacy and rights to free speech were written way before tweets came on the scene.

It’s just the beginning of an Internet privacy battle that will rage in our nation’s workplaces in the months and years ahead, legal experts say, and no one knows how it will turn out, not even the nation’s highest court.

“Things are changing so quickly the law can’t keep up with it,” said Ann Hodges, professor of law at the University of Virginia. “As new technologies develop, how can we decide whether there is a reasonable expectation of privacy before societal expectations are clearly shaped?”

One recent key tech-privacy case found in favor of the employer.

Jeff Quon, a California SWAT sergeant, was given a pager from his employer, the Ontario Police Department. He was later found to have used the device not only for work but also to send  sexually explicit text messages to his wife and his mistress. Quon’s employer found out about his personal use of the pager after an investigation looking into excessive texting at the department. Quon sued the department, claiming the messages were confidential, and the case ended up in U.S. Supreme Court.

The high court found the audits were legal, but it stopped short of making a far-reaching decision on privacy rights and emerging technologies.

In its finding the high court wrote:

"Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. At present, it is uncertain how workplace norms, and the law's treatment of them, will evolve."

We’re literally watching the world change before our eyes, and it’s unclear if worker rights will triumph.

“Because things are changing so quickly it’s becoming difficult for employers and employees to manage expectations of what is and is not allowed,” said Scott Peterson, a labor attorney for Tully Rinckey, a law firm that represents employees. “The bigger issue is to what extent do employees have the right to express opinions?”

Many employees treat websites such as Facebook as their private domain for friends and family and use privacy settings to keep strangers, and maybe bossed, out. But Robert Collins, a Maryland corrections officer, was recently required by his employer to provide his Facebook login so managers could look at his activity on the site. After a complaint filed by the ACLU  this year, the Maryland Department of Public Safety and Correctional Services announced it suspended the practice, pending review.

Deborah Jeon, legal director for the Maryland ACLU, said the department’s requirement violated federal law protecting electronic communications and a Maryland commonwealth privacy protection law.

“It’s completely inappropriate to pressure or require an employee or applicant to give that information out,” she said.

In the case of Tagocon, the former JPMorgan employee, she refused to take down her historical fiction blog that she wrote under a pen name from her home in Piscataway, N.J., and she claims she was fired as a result. Her attorney, Chris Davis, who works for The Ottinger Firm in New York, calls her case a “scary Big Brother privacy issue.”

Davis said the lawsuit hinges on a New York law that prohibits companies from punishing workers for outside activity, but he acknowledges that when it comes to Internet activities “the courts and companies are all struggling with this new concept.”

JPMorgan spokesman Darin Oduyoye said the bank believes “this case has no merit whatsoever.”

As for Souza, the ambulance employee, the National Labor Relations Board fought the termination, contending she was engaged in protected speech because the law protects employees who talk about work conditions. The case was settled, and the NLRB was able to get the company to change its rules regarding worker comments on the Internet.

Despite this victory, employers still have a lot of latitude when it comes to terminating or demoting workers for any reason, especially nonunion workers or those who work in at-will employment states.

Many companies now have blanket policies on what workers do on the Web, and restrictions are on the rise.

Twenty-seven percent of companies have policies governing the content employees may post on their personal, home-based blogs, up from 7 percent in 2006, according to a study by the American Management Association and ePolicy Institute.

While private employers have long been able to fire workers for things like expressing political views, it’s much more difficult to do so with government workers who do have more free speech rights.

But  even that is not a given. Jeffrey Cox was fired from his job as Indiana’s deputy attorney general in February because of his Twitter tweets saying that law enforcement in Wisconsin should use live ammunition on protestors.

Cox told Channel 13 in Indianapolis:

“I think we may be getting down a slippery slope when people have to watch what they say in their off hours, on their own time, because someone may not agree with them and use it to silence them.”

Many cases could end up in the high court’s lap, and when it comes to expressing one's opinions “the Supreme Court seems to be a protector of free speech,” said Villanova University political science Professor Robert Langran, pointing to the recent decision by the court to allow protestors at the funeral of a veteran. But, he added, “this court also tends to like corporate America."

Attorney Peterson doesn’t see any blanket statements coming from the courts any time soon.

“It will be more of ad hoc decisions,” he predicted.

That’s a scary notion for employees who want to engage in social media but also want to keep their jobs.

Eve Tahmincioglu writes the weekly "Your Career" column for msnbc.com and chronicles workplace issues in her blog, CareerDiva.net.

Vote: Vote: Does your employer limit your use of social media?

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