Can an employer legally fire an employee for their social media post?
Getting “Dooced” means being fired because of the content of your personal blog or social media post. The vast majority of us have multiple social media accounts. Through social media, we share personal information: our activities, opinions, beliefs, likes, and dislikes. We view our social media accounts as personal. However, because of the public nature of social media, our personal posts have the ability to harm our employer. Posts containing private information about the employer, trade secrets, negative comments about the employer’s clients, hate speech, or posts harassing fellow employees can all adversely affect an employer. Then the employer is faced with the decision of whether to discipline or even fire an employee for a post made on social media.
An employer should consider many factors before deciding to discipline or fire an employee for their social media post. But, the first question that should be considered: Is it legal for an employer to fire an employee for their social media post? Like most legal questions, the answer is: it depends. It depends on what the employee posted. It depends on the state in which the employer is based and the employee lives. It depends on whether the employer is the government or a private company. An employer must consider these and other factors before disciplining or terminating an employee for a social media post.
Employment At-Will
Generally (but with some exceptions discussed below), employers may discipline or fire employees for what the employee posts on social media. Most U.S. states are “at-will” employment states. “At-will” employment means that either party may terminate the employment relationship at any time, for any reason, so long as the reason is not prohibited by law. Which means an employer is free to fire an employee for the employee’s post on social media, provided that the employer abides by applicable law.
There are a variety of situations in which it is clear an employer may legally fire an employee for what the employee posts on social media. An employer may discipline or fire an employee who posts:
- The employer’s trade secrets or confidential information
- Misleading or false information about the employer
- Negative comments about the employer’s clients or customers
- Information or photos showing the employee engaging in illegal activity
In addition to these, an employee has the leeway to discipline or terminate an employee who makes discriminatory remarks on their social media. Under anti-discrimination laws like Title VII, an employer is obligated to protect its employees from a hostile work environment. An employee’s offensive conduct, such as making ethnic, racial, or sexist slurs, can create a hostile work environment for other employees. If an employee makes a statement on social media that if made in the workplace would justify discipline, it is likely an employer may discipline the employee for the social media post.
The First Amendment and Freedom of Speech
Many people believe the First Amendment protects their freedom to post anything they want on social media. This is untrue. The First Amendment protects our freedom of speech from government interference. It does not apply to private employers. Private employers can, and do, have rules and policies that restrict their employee’s speech. As long as a private employer’s policies do not prohibit speech which is protected by federal and state laws, the employer is free to make policies that restrict their employees’ speech.
Although the First Amendment does not apply to private employers, there are several federal and state laws that do apply and limit an employer’s right to discipline or fire an employee for what they post on social media.
National Labor Relations Act
Employees have broad protection when they post complaints on social media about working conditions or unionization. The National Labor Relations Act (NLRA) protects the rights of employees to communicate with each other about the terms and conditions of their employment. This includes sharing information about pay, benefits, and working conditions.
Because of the growth in the use of social media in our lives, NLRA’s protection of social media activities has also expanded. The NLRA places tight limits on an employer’s ability to discipline employees for work-related online posts. Even if a post is offensive, the post is protected under the NLRA if it relates to working conditions or unionization.
For example, an employee of a New York catering company used his iPhone to make a post to his Facebook page about his manager. The post read, “Bob is such a NASTY MOTHER F—ER don’t know how to talk to people!!!!! F–k his mother and his entire f–ing family!!! What LOSER!!! Vote YES for the UNION!!!!!!!!!”
The National Labor Relations Board found that even though the post was offensive, obscene, and attacked individuals in management personally, it related to unionization and was protected under the NLRA.
Title VII and other Anti-Discrimination Laws
Under Title VII and other anti-discrimination laws, employers may not discriminate or treat employees differently based on race, color, sex, religion, age, disability, or pregnancy. Under these laws, an employer may not discipline employees for speech based on one of these protected categories. For example, an employer could violate Title VII if it fired or disciplined a black employee for making a Black Lives Matter post to their social media, but did not discipline a white employee who participated in a different political movement. If an employer does not uniformly enforce its social media policies with all of its employees, the employer could run afoul of Title VII and other anti-discrimination laws.
Political Protection
Anti-Retaliation or Whistleblowing
There are federal and state laws that protect employees from retaliation by the employer arising from the employee’s whistleblowing of illegal activity or reporting of certain types of problems (harassment, discrimination, unsafe working conditions. etc.). It may be illegal retaliation if an employer takes action against an employee for posting information about the employer’s illegal or discriminatory activities.
Off-Duty Conduct
Some states ban employers from disciplining employees from what they do on their own time, provided the activity is legal. California, Colorado, Louisiana, New York and North Dakota each have laws that prohibit employers from firing or retaliating against employees for any off-duty lawful activity, including speech.
Before taking action against an employee for personal posts made on social media, employers should consider whether any of these laws protect the employee.
-REC
Clinical Assistant Professor of Business Law
