Can I Fire an Employee for His Facebook Post?

Considerations for Employers Policing Social Media

Two things are eminently clear as the 2020 election season ramps up—1) everyone has an opinion, and 2) they are not shy about sharing it. So, what is an employer to do when an employee likes or shares an inflammatory article on Facebook or uses his 140 characters on Twitter to start a battle with a local government candidate? Is the employee’s speech protected? Does the National Labor Relations Act apply? Below are a few considerations.

First Amendment

Generally, a private company can discipline an employee for a problematic post without issue, as the First Amendment applies only to government action. This freedom may be limited by union negotiations if the collective bargaining agreement prohibits the employer from firing an employee based on online activity.

National Labor Relations Act

While politically-oriented posting is not likely to fall under the Act, employers should remain conscious of how the Act could limit their policy’s enforce ability if the speech they are seeking to prevent is related to the terms and conditions of employment. Under the Act, employers cannot prevent employees from discussing things like their pay, benefits, or working conditions if such activity could be construed as "protected concerted" activity. So, where an individual employee’s tweet griping about the bad day she had at work is not likely protected, a Facebook group where current employees can share complaints about their supervisors may be.

State Employee Privacy Laws

Some states have specifically legislated on the ability of employers to control employees’ social media. Nebraska, for example, prohibits an employer from: requiring or requesting an applicant or employee to provide their social media login information; requiring or requesting an applicant or employee to log in to their accounts in the presence of the employer; requiring an applicant or employee to add any contact to their network, including the employer; or taking adverse action against the applicant or employee related to the enumerated items. Fifteen other states have statutes which apply to employers.

Lawful Activities Statutes

A handful of states have passed laws protecting employees from discipline for engaging in any lawful activity outside of work. While these laws are most commonly applied to marijuana use or an employee’s criminal history, the broad language has been used to provide protection for an employee’s social media activity. Employers should therefore be sure to remain up to date with their state’s legislation on the issue.

Social Media Policy

Employer social media policies have been a hot button topic for several years now as the popularity of sites such as Facebook, Twitter, Instagram, and others has grown exponentially. Some companies have a strict no-personal-use policy while employees are on the clock or using company property, while others encourage their employees to be active—but act responsibly—on social media.

No matter what the company’s policy, there seems to be a common thread: when an employee posts something to any social media outlet, whether on or off the clock, they should either 1) make no reference to the company in any capacity, or 2) if they do reference the company, make it known that the post is strictly their own personal view and does not necessarily reflect the company’s view on the topic.

Employees should also be encouraged to exercise good judgment in what they post, whether it be company-related or personal and be reminded to never post anything that could be construed as racist or defamatory. Make sure employees understand that they will be held responsible if they violate company policy for what they post on social media outlets. Additionally, even though it should go without saying, include in the policy that no proprietary or confidential information is allowed to be posted.