Can an Employee be Fired over a Social Media Posting?

Can an employee be fired over social media postings? Yes, but there are some laws and rules that need to be considered before a firing decision is made.

First amendment rights to free speech means the federal government cannot keep an employee from speaking their mind. Private businesses are not obligated in the same way. But before a business can tell employees they cannot talk publically about something, that rule should be enforced across the board and be included in a job description. An example would be client privacy. A company might have a policy that employees cannot talk about clients or client business in any way or at any time. This policy should be enforced equitably and be part of regular staff training. If this is considered a one-strike offence, for example, for nurses about patient privacy, then the fact that this is a firing offence should be part of the policy and training.

The National Labor Relations Act protects some employee activity to communicate with each other about conditions of their employment, and to work in concert regarding this employment. This applies if the workplace is unionized or not. The issue of how private the concerted act and communication is, and if it breaks privacy concerns or damages a company’s reputation, are case specific. This might be a good training exercise for staff and managers.

Some states protect employees from retaliation based on off-duty activity, as long as that activity is legal. Political statements and activities are similarly protected in some states. Whistleblower protection laws have been passed on both the federal and state level that protect employees from retaliation in the workplace from issues like disclosing unsafe work conditions or disclosure of protected information having to do with public safety.

But the majority of cases of social media postings that get employees in trouble have to do with behavior or communications that display poor judgment. The definition of poor judgment can be spelled out as part of a job description with examples, with the caveat that the examples are not inclusive. Training in this area may be the more effective way to reduce incidents of social media postings that harm employees and the reputations of businesses.

Before a firing decision is made, make sure that conditions that are protected under equal employment opportunity laws are not at issue, and make sure that policy in this area is clear, enforced across the board, and is covered in job descriptions and at staff trainings.

Contact us for more information.