Social media use is ubiquitous in today’s world, with platforms like Facebook, Twitter, Instagram and others allowing people to share updates, photos, videos and more about their personal and professional lives. However, the line between personal and professional is not always clear cut on social media, and questions can arise about whether an employer can fire an employee based on their posts, comments, likes and other activities on platforms like Facebook.
Can an employer legally fire an employee over social media posts?
The short answer is yes, in many cases an employer can legally terminate an employee based on their social media posts or activities. However, there are some important caveats and restrictions that may apply, depending on federal, state and local laws. Some key factors include:
At-will employment
In all U.S. states except Montana, employment is considered “at-will,” meaning the employer or employee can terminate the relationship at any time for any reason, except for legally prohibited reasons like discrimination. Under at-will employment, an employee could be fired over social media posts even if the content is not related to their job.
Protected class status
While at-will employment gives employers broad discretion to fire workers, federal and state laws prohibit termination based on an employee’s protected class status, such as race, religion, gender, disability, etc. Firing an employee over social media posts that implicate their protected status could constitute illegal discrimination.
NLRA rights
The National Labor Relations Act (NLRA) protects employees’ rights to engage in “protected concerted activity” involving collective bargaining and discussion of wages, hours and terms of employment. An employee may not be fired for social media posts made as part of these NLRA-protected activities.
Off-duty conduct laws
Some states have laws preventing employers from punishing employees for legal off-duty activities or conduct, which could include some social media activities. However, these laws do not protect posts about illegal activities.
Employment contracts
For employees working under an employment contract, the contract terms would dictate whether they can be fired for social media posts or if additional protections apply. Contracts would override at-will policies.
When can employees be fired over Facebook posts?
While employees have some protections, there are many scenarios where an employer can legally fire a worker over their social media posts, comments and likes. Situations where termination is often permitted include:
Violating company social media policy
If an organization has a clear social media policy restricting certain posts that employees acknowledged and agreed to, violations of that policy through Facebook activities can warrant termination.
Disparaging or criticizing the company
Posts, comments and images that are damaging to the company’s reputation and goodwill or that disclose private company information may lead to firing if not removed upon request. Defamation claims could also arise.
Offensive, harassing or discriminatory content
Anything on social media deemed unlawful harassment, threats, bullying, racial slurs or other discriminatory content directed at coworkers, managers, customers, vendors, etc. could result in termination.
Obscenity and illegal content
Pornographic posts along with content promoting unlawful or dangerous activities like illegal drug sales, stalking, property damage, etc. that violate the law or company policies can warrant firing.
Confidentiality breaches
Sharing proprietary trade secrets, confidential client/customer data or protected health information via Facebook can violate privacy laws and termination for such posts would likely be upheld.
Dishonesty and misrepresentation
Lying about qualifications, education, professional background or other work-related facts on social profiles may constitute grounds for dismissal if discovered.
Factors employers consider when firing over social media posts
Before deciding to terminate an employee over concerning Facebook posts or other social media activities, prudent employers will typically consider:
Job duties and role
Posts that would undermine an employee’s core job functions warrant more concern than social media activities unrelated to work tasks. For example, offensive remarks by a front-line service employee represent greater risks than similar posts by back-office staff.
Extent of distribution
A Facebook post viewed by an employee’s entire network warrants more attention than a comment on a friend’s limited-access post. Widespread visibility increases potential damage.
Position and status
High-level executives and management must often be held to a higher standard of conduct than entry-level staff due to their influential role representing the company.
Audience and connections
Employees connecting with coworkers and clients via social platforms should take extra caution versus those with purely personal accounts limited to family and friends.
Company size
In smaller companies where employees’ social media activities are more tied to the organization’s brand, firing may be a quicker response versus large corporations with distance between individual workers’ online lives and the business.
Response to intervention
Employers should first bring concerning social media behavior to the employee’s attention and give them opportunity to stop before escalating to termination in some cases. However, refusal to remove inflammatory, offensive or dangerous posts can fast-track firing.
Best practices for employees using social media
To maintain job security around social media use, employees should:
Keep personal and professional accounts separate
Having distinct personal and business profiles on social platforms allows greater freedom on personal pages while maintaining professionalism and discretion on business accounts.
Review and utilize privacy settings
Facebook and other platforms offer customizable privacy options to limit audiences for different types of posts. Using available settings helps employees tailor distributions.
Think before posting
Pausing to consider whether a post could compromise job status or relationships with coworkers, managers and clients can prevent regrettable instances of sharing in the heat of the moment.
Remember nothing is truly private online
Even with privacy settings, social media posts can still be surfaced through screenshots and shares. Assume anything posted could become public.
Maintain respect
Avoid vulgarity, off-color humor, insults, rants, and other content on social media that could alienate colleagues, clients and stakeholders. Take the high road.
| Scenario | Legally Protected? |
|---|---|
| Employee criticizes boss’s management skills in Facebook post | No |
| Employee is member of protected class and fired after complaining about discrimination on Twitter | Yes |
| Employee fired after racy personal photo leaks on Instagram | No |
| Employee vents about wages and working conditions on Facebook | Yes, may be NLRA-protected |
| Employee brags about skipping work on social media | No |
Conclusion
In many cases, employees do have protections around their personal social media use and being fired for Facebook posts and other online activities. However, numerous situations exist where termination would be permitted and legal. Employees should behave thoughtfully and cautiously on social platforms to avoid jeopardizing their jobs. Adhering to company policies and focusing on professionalism, respect and discretion is key.