Firing an employee for posting on social media can land you in legal trouble — even if you live in an at-will employment state.
In fact, you should never fire someone due to work-related social media content.
Work-related complaints on social media can be construed as legal concerted activity and protected by labor law.
Even the policies you provide to regulate social media use by employees can be illegal and considered discriminatory. “Having a policy that is overly broad can be considered restrictive. Employers need to clearly define terms like inappropriate activity,” employment attorney Melissa Fleischer recently explained to Avant Resources learners.
She listed several laws and the restrictions they pose on employee terminations:
- Lawful off-duty conduct -- Terminating an employee for reasons such as publicly voicing their concern over job dissatisfaction is prohibited
- National Labor Relations Act (NLRA) -- This law for legal concerted activity allows employees to gather and discuss working conditions or vent workplace frustrations on public posts
- Employment discrimination law Prohibits terminating employees for posts on protected classes such as sexual orientation and religion
- Invasion of privacy claims -- Employers cannot use information exchanges on personal devices of employees (which employer is not paying for), as grounds for termination
- Federal Stored Communications Act (FSCA) -- Federal law prohibits anyone from accessing somebody’s social media account if that information is marked private
Instances when employers can terminate employees:
- Employee posts intentionally malicious content that is meant to defame the employer
- Employee is creating a hostile work environment with their social media posts
- Employee is divulging trade secrets
Test Your Knowledge: True or False
1. Employers are infringing on an employee’s attorney-client privilege by reading the employee’s emails on the company server
2. Employees can be fired at-will if they become whistleblowers about working conditions
3. A post regarding salary discussion warrants immediate termination
4. Off-duty conduct laws do not apply to employees while posting on social media
5. Employers can intentionally access an employee’s social media account during e-discovery
6. LinkedIn is different- since people are identified by their job association, they cannot post anything that is their personal opinion
Social Media Firings is recorded video training available from Avant Resources and provides for 1.25 credit hours of SHRM training as well as a sample social media policy and guidelines.
Quiz answers: (1) F, (2) F, (3) F, (4) F, (5) F, (6) F.