You may suddenly receive notice that your employer has decided to terminate your employment because of posts you’ve made on social media platforms. When you lose your job due to social media activity, you may wonder, “Can my employer fire me for social media posts?”
An employer’s ability to terminate an employee for their private social media activity depends on complex employment laws and public policy. As a result, you need experienced legal counsel and advocacy to protect your interests if you get fired for social media posts.
Understanding Employment-At-Will Doctrine
The employment-at-will doctrine generally allows employers and employees to terminate the employment relationship at any time, for any reason, or for no reason at all. By default, an employment relationship operates under the at-will doctrine.
In an at-will employment relationship, an employer may fire workers for any reason or no reason. There is an exception if the reason violates state or federal law, such as firing someone because of their sexual orientation or in retaliation for whistleblowing. This doctrine can give employers broad discretion to terminate employees, even for an employee’s personal social media activity.
However, an employer and employee can enter an employment contract that governs the ability to terminate the employment relationship. For example, the contract may limit an employer’s ability to fire an employee only for cause and define what is considered “for cause.”
Social Media Policies in the Workplace
Many employers have social media policies that restrict workers’ online activity. For example, policies may prohibit employees from accessing or posting on personal social media accounts while at work or using company-supplied devices.
However, some company social media policies put further restrictions on an employee’s personal social media activity. For instance, an employer’s policy may prohibit workers from making negative comments about the employer on social media or posting content that could cause bad publicity for the employer.
Free Speech vs. Employer Rights
Many people have misconceptions about the free speech protections provided by the state and federal Constitutions. Constitutional free speech rights only protect individuals from the government. A private entity may take action against someone for their speech without violating their constitutional rights. This means private companies may fire workers for posts they make on social media without violating their free speech rights. However, government employers have more restrictions on firing employees for constitutionally protected speech.
When Social Media Posts Cross the Line
Social media posts may cross a line for employers when those posts have the potential to negatively reflect on the company. Posts have a greater chance of resulting in termination if someone explicitly identifies themselves or has information on their social media profile that indicates they work for the employer. Employers may fire employees under these circumstances when their social media posts include discriminatory comments or involve violent or criminal behavior. For example, an employee might face termination for making offensive comments about a particular race, national origin, religion, sex, gender, or sexual orientation on social media.
Protected Activities Under Federal and State Laws
Federal and state laws prohibit employers from terminating employees for their social media posts in specific circumstances, such as:
- Discrimination – Employers may violate state or federal antidiscrimination laws when firing an employee for social media posts involving their status as a member of a protected class, such as sexual orientation, disability, or religion. An employee may have a discrimination claim if other coworkers not in their protected class do not face discipline for making similar social media posts.
- Whistleblowing – An employee may have legal protection for making social media posts that report workplace safety issues or illegal business practices. The employee may have a whistleblower retaliation claim if the employer fires them for publicizing unlawful or unethical business practices.
- Organizing – Employers’ social media policies cannot prohibit employees from addressing certain work issues on social media, including discussing work conditions or organizing collective bargaining activities with coworkers. Firing employees for discussing such matters over social media may violate the National Labor Relations Act (NLRA).
Employees may have additional protections if their employment contract or collective bargaining agreement provides it. For example, an employer might wrongfully terminate an employee for their personal social media posts in breach of contract when their agreement allows them to make such posts or the posts are not within the contract’s definition of “cause.”
Can You Challenge a Termination Over Social Media Posts?
You may have grounds to challenge your termination for social media posts if:
- You have an employment contract or collective bargaining agreement that only permits your termination for “cause” and your posts did not violate any employer policies.
- Your employer’s decision to fire you for your social media posts discriminated against you based on a protected characteristic.
- Your employer terminated you in retaliation for publicizing their illegal activities, unethical conduct, or unsafe workplace conditions.
- Your employer fired you for organizing activity with coworkers protected under state and federal labor laws.
An experienced employment law attorney can help determine if you have a valid wrongful termination claim.
Know Your Rights and Protect Your Future: Contact Us Today
If your employer has fired you for posts you’ve made on social media, you need to understand your legal rights and your options for protecting your financial interests and professional future. Contact Cruz Law Firm, P.A. today for a confidential consultation with an employment law attorney to learn when companies can fire you for social media posts.
With nearly 20 years of combined legal experience, our attorneys have the knowledge and insight to tackle challenging employment law actions and support workers through difficult circumstances. As one client wrote:
“Mrs. Tiffany Cruz is extremely professional and knowledgeable. She is personable and made sure understood everything while also advocating on my behalf! Cannot speak highly enough of my experience with her and how much she helped!” – LK
Cruz Law Firm, P.A. has recovered over $15 million for clients. Talk to us to see how we can help you.