Almost everyone uses social media these days. However, for employers, it’s a tough call as sometimes employees’ social media posts are either embarrassing or outright critical of the company. But can you fire an employee for social media posts?
Here’s what I know from hiring thousands of people:
It is possible to fire an employee for social media posts if the post damages the business’s reputation or is critical of the customers of that business. But in an At-Will state, employees can actually be fired at any time for any non-discriminatory reason.
But that’s just a quick answer, and it’s not always that cut and dried.
So, in this article, I’ll share vital insights that will help you deal effectively (and within the context of the law) with employees who write damaging social media posts.
Just bear in mind that while I have hired and managed thousands of people over the years, and fired at least 100 people, I am not an attorney and my article should not be considered legal advice. If you need an attorney, seek out a qualified one in your area.
Let’s get started.
Reasons for Getting Fired Because of Social Media! pic.twitter.com/mwz7sHWtDH
— Express Employment Professionals (@ExpressNashTN) June 6, 2016
Should employees be held accountable for their social media posts?
Yes, employees should be held accountable for their actions, even off the clock and away from work if it can be proven to negatively impact the employer or workplace. All employees should also be aware of the law that in “at-will” states, an employee can be let go for any legal reason.
Ultimately, Every adult knows that there are consequences to all our actions.
The posts employees share online can have far-reaching effects that could be embarrassing or even damaging to the company. After all, posts are published instantaneously and can be accessed by an incredible number of people.
Since it’s coming from an employee, readers are more likely to believe that it portrays the reality of what’s happening in the company. And, even when it’s not directly related to what happens at the company, if it’s racist or sexist, they might infer that such views reflect the company’s position.
If there are views that an employee won’t feel comfortable sharing in the office or offline, they must be careful of sharing such online.
Because one could argue that it’s even more harmful online due to the post being usually in the form of a text that’s there for all to see, and worse, it can easily be referred to as evidence in the future!
Yes, employees should be held accountable because their actions, both online and offline, could affect the company they work for.
So, common sense is required in the use of social media. After all, if the company is adversely affected by some posts, the impact could be very costly for the company.
It’s vital to reiterate that in at-will states, an employee can be terminated for any reason!
Say a company has a policy against drug use if an employee is found posting pictures and text of a party they attended, where drugs are being used, for example, they might get a pink slip.
What about the First Amendment?
Does the First Amendment not protect employees’ rights to free speech?
Truth be told, it doesn’t cover rights in the workplace. What it covers are rights in relation to the government. The law actually allows each company to devise internal policies and standards that regulate the conduct of the people who work with them. So, the social media policy of a company should be adhered to.
So for employees, if the company doesn’t have a social media policy or even an employee handbook, proceed with caution in posting controversial things. Or set your privacy settings such that only your friends can see your posts. Then make sure to not add anyone you work with.
This leads us to a question that’s probably on your mind:
If an employee has got to go, can you fire them over the phone?
Is it legal? I provided a detailed guide in a recent article of mine. Just click the link to read it on my site.
How does At-Will employment work?
So, if it’s an “at-will” state, an employee can be given a pink slip without any warning, reason, or even without a just cause.
Now to be clear, the reason for termination can’t violate any US law, including EEOC policies that protect certain classes of people from wrongful termination. So someone over 65 can’t be fired because they work slower than another. You also can’t fire someone due to their race, color, or religious beliefs.
But an employee who posts damaging content online can be shown the door if management decides that’s fair.
It’s good to note that Montana is the only state where “at-will” employment does not apply.
It applies in all other states. Of course, some states allow exceptions, while the following do not:
- New York
- Rhode Island
The recent firing of a dog walker due to an incident in New York’s Central Park that went viral shows that social media can impact an employee’s privacy. Bracewell’s Becky Baker shares her thoughts with @pthibodeau11 in this @TechTarget article: https://t.co/CP6A0oRFP6 pic.twitter.com/pJsYtacgdD
— Bracewell LLP (@BracewellLaw) June 10, 2020
Can employers look at your social media?
Yes, employers can look at the social media accounts of their employees and prospective employees as long as that person’s privacy settings allow public viewing. In fact, in some states, and under certain conditions, the law allows employers to ask for your username and passwords.
But, even when the situation is not dire, remember that most social media posts are set to “public.”
And, just as total strangers can check your social media profile, employers, too, can. If there are posts you think are too sensitive or personal, you may want to reconsider posting them. The reality is that your information on social media is public information!
You may have profiles that are personal (strictly for you and a few others) and profiles that project your “professional self.”
This might seem like a lot of work, but you’d probably agree with me that your employment is more important than “self-expression,” so having multiple profiles may be the way to go if you’re a controversial person.
You’re free to express yourself, as long as you don’t harm others.
But what “harms others?” That’s really the question. Termination-worthy posts don’t have to just be profanity-laden tirades against the CEO. In fact, sometimes just gossip can get you fired.
Would you like to know if the law allows an employee to be sacked because they’re found gossiping?
That’s the theme of a recent article of mine. Just click the link to read it on my site.
Facebook is probably the most widely-used social media platform, at least for those over age 25. What happens when an employee misuses Facebook?
— Jonathan A Segal (@Jonathan_HR_Law) June 23, 2017
Can you discipline an employee for a Facebook post?
Yes, as with any other social platform, an employee can be disciplined for disparaging or discriminatory Facebook posts, but in an unemployment hearing, the burden would fall to the employer to prove the post was libelous or directly damaging to the business.
So an employer, even in an At-Will state, should be careful to not rush to judgment. There have been cases where employees have sued their employer for what’s deemed to be unlawful treatment.
It’s vital that employers have a documented policy on social media use (drawn up by your legal and HR team), which all employees have access to.
Ideally, training should also be provided on the policy to educate staff.
And, it should naturally adhere to guidelines provided by the National Labor Relations Act. That’s a law that governs the relationship between unions, management, and employees’ rights to come together to freely deliberate about the terms and conditions of their employment.
But it also shows that the following are some circumstances where an employee can be disciplined, and they won’t have any justification for arguing that they’re being treated unjustly.
- If they reveal trade or financial information of the company
- If they trivialize or are critical of the company products and services
- Posting information relating to customers or clients.
- Writing posts that disparage their supervisor or co-workers.
- Posts that are racist, sexist, homophobic, or ridiculing a religion
Apart from harmful Facebook posts, there are some employees who just have a bad attitude. But it’s no surprise that often these things go hand in hand.
A bad attitude can be contagious, and you might be wondering if you can fire them just for that.
This is what I explored in-depth in a recent article of mine. I get into all of the nuances and exact procedures I followed that kept unemployment wins at practically 0 for terminated employees.
Just click the link to read it on my site.
— Anthony Zurcher (@awzurcher) July 27, 2017
If an employee criticizes me on social media, can they be fired?
Yes, an employee can be fired for criticizing their boss, company, or co-workers in social media if they name them by their full name where the target is clearly identified. ,
But of course, as we covered above, in an At-Will state, which most are, an employee can be fired for any legal reason without prior warning.
Do note, however, that doesn’t mean the employee can’t file for unemployment (they probably will). And it doesn’t even mean they won’t be granted unemployment benefits, depending on whether your state tends to favor employees in those hearings or employers.
Like all things governmental and political; there is almost always a bias.
If the nature of the criticism in the post is vague or unclear or could be construed as humor, you’ll need to consult your legal team and HR department.
That way, you can be advised whether the employee should simply be issued a written warning or whether they should simply be sacked.
Even when it’s within the ambit of the law that the employee could be fired, it’s a delicate decision because it would likely impact other employees.
If they feel that the employee in question wasn’t treated fairly, they might think that their employment is not secure. Then that might create a hostile work environment for you.
That leads to unproductive employees and high turnover.
So the best policy is to have a clear written policy. Verbally review that policy upon hire. And make sure to hold every employee from the owner down to that same policy.
— Victoria (@ToutStrategy) October 11, 2017
Can you get fired for cursing on social media?
An employer can fire an employee for using profanity on social media, although unless it was directed at the company or a fellow employee, it’s unlikely.
It’s vital to get the implication of having an “at-will” employment. In effect, it means you can get fired for almost any reason!
Think about it.
In fact, in a lot of employment contracts, it’s often stated that either party can terminate the employment contract with or without notice. So, cursing and other related negativity are really asking for trouble.
An employer has a right to decide the kind of people they want to work with and the kind of behavior workers are expected to adhere to.
But as we’ve said, the ideal employer would have a social media policy in their employee handbook that clearly spells out what is and isn’t acceptable. This would also then be gone over briefly in training or orientation.
That way, it’s not a surprise if an employee gets disciplined or fired for violating a clear written policy. They simply made the choice to violate that policy. And as with all policy violations, there are consequences.
In the preceding paragraphs, we explored what the law says about when employees can be given the pink slip because of their social media posts.
We learned that “at-will” contracts invariably imply that an employee can be sacked for almost any reason!
In effect, a “simple” social media post could cost you your job! I also suggested a way for employees to deal with the tension between the desire to express themselves freely and keeping one’s job.