21 Jul Can employees get fired for what they post on social media?
For those of you who may know me personally, this post is a combination of my political beliefs and employment law. One of the questions that seems to be popping up a great deal when talking about employment law is issues of employee behavior outside of the workspace – in particular employee behavior on social media.
I often get the question: can employers impose restrictions or fire employees as a result of employee conduct on their personal social media pages? To be clear, we are not talking about company profiles, but personal accounts.
Let’s start with a couple of fundamental principles.
First, I believe in free speech. I believe that everybody has the right to express their opinion and to say what they feel and think. Sometimes that means some of the ideas are less than acceptable in many social circles. They may be contrary to the greater public opinion. But, they still have the right to speak.
Second, having a job is not a right. Having and believing in free speech does not mean that the speech is free of consequence. Hence, sometimes that free speech could result in losing your job.
Employers often ask me: what can I do?
First, you want to make a clear policy that states that we, the employer, are not actively screening personal social media. If the personal account tags the company, certainly that is something that the employer should review. But, in several states there are laws in place that prohibit an employer (or a prospective employer) from reviewing an employee’s personal social media accounts. For example, in the state of Maryland it is illegal for an employer to request an employee provide social media credentials to their employer or require employees to follow the employer’s social media accounts.
However, if an employee’s social media account is made public or it is brought to the employer’s attention and contains speech that would bring disrepute on the employer, then the employer has the right and the ability to take action upon that information.
The employer may also prohibit certain kinds of speech in the workplace, for example prohibiting racist comments, threats, or a suggestion of violence. If an employee uses any prohibited language, it is actionable by the employer up to and including termination.
If you are an employer facing this type of issue, I strongly, strongly suggest that you speak to a lawyer before you take employment action, such as suspending or terminating an employee. And, I strongly suggest that you document the speech clearly so that you have a copy of the offending post(s). I strongly suggest you seek a third-party option to determine whether or not the activity is objectively racist, discriminatory, or violent.