Does your organization have a social media policy? There may be situations in which an employee makes an unwelcome social media post on their own account. Can you fire someone for what they say on their own social media accounts?
In many cases, you can. The fact that a statement was made on a person’s own time on a non-work-related social media account does not necessarily preclude consequences. However, before you make any quick decisions, be sure you’re not violating the employee’s rights. Here are some considerations:
Was the post public?
Some state laws protect employees when they post on their own social media accounts. For example, both Virginia and Maryland have laws prohibiting employers from requiring employees or job applicants to provide logins and passwords for their accounts.
If the employee’s post was not public, they may have a valid complaint if you somehow uncover the post and fire them over it. Be sure you understand your state’s laws on non-workplace social media rights.
Was the post protected speech?
The National Labor Relations Act protects workers’ right to unionize or attempt collective action. The employee may have the right to post if doing so was in an effort to act collectively with other employees. Discussing working conditions with other employees can be considered collective activity.
Other examples of protected speech include whistleblower activity and complaining about discrimination or harassment at work.
Can the employee be terminated without due process?
If you have any union contracts, but also depending on your internal policies, you should be aware that some employees have contractual rights to due process in termination. For example, a union contract might require several steps be taken before an employee can be terminated. Or, your own internal policies may grant employees certain rights before they can be fired.
When can you fire someone over a social media post?
Before you fire an employee over a social media post, consider whether the post clearly violates your social media policy or another obvious legal line. If the violation is clear or if the post is threatening or harassing towards other employees, for example, you can generally fire the poster.
Likewise, you can typically fire someone for divulging confidential information on social media, posting things that demonstrate the employee has lied to the company, or when a post tarnishes your reputation — as long as the post does not represent protected speech.
As you can see, there are situations where it may not be clear whether you can fire an employee over social media activity. If you have specific questions, contact your employment law attorney.