Can You Fire Someone for Their Social Media Complaints About Work?
Provided by HG.org
Today, social media is used by most people on many different platforms. Using social media has an instantaneous effect in that the public can read about a situation immediately after it has arisen. This situation can lead to unwanted publicity and attention for a business when the social media post has to do with business practices.
Recognizing the possible detrimental effects that a person’s posts may have on a business, some businesses implement rules related to social media use. This may include prohibiting employees from using social media during working hours. They may also seek to limit the type of content that the employee posts. The business may not want to associate itself with any type of political stance and may have policies about not linking the business with certain causes or actions. However, businesses may need to take certain precautions to ensure that they are not implementing policies that can put them in troubled legal waters.
Most states have at-will employment. This means that the employment relationship is voluntary on both sides. An employee can quit or an employer can terminate an employee at will. This allows an employer to fire an employee for no reason or even a bad reason so long as the reason for termination is not illegal, such as due to illegal discrimination. If the employee relationship is predicated on an at-will relationship, the employer may be within its legal rights to terminate the employee simply because it did not like the content of the post, so long as this is not otherwise prohibited.
Some employees have employment contracts. If the employment relationship is predicated on this contract, then the terms of the contract prevail. The employment contract may discuss when an employee may be terminated, such as only for good cause. This term may be further defined in the employment contract. If the employer terminates the employee for a reason not specified in the employment contract, the employee may have grounds to sue the employer for breach of contract.
The National Labor Relations Board may further elucidate times when an employer cannot lawfully terminate an employee due to social media posts. This organization receives thousands of complaints on an annual basis because of employees who were terminated due to their social media content. In an effort to educate the public about prohibited employment practices, the
NLRB issued a report regarding this practice.
Employees have the right to engage in “protected concerted activity” that is protected by law to allow employees to form unions. This type of activity is protected even if employees are in non-union states and for individuals who are not technically part of a union.
This right allows employees to discuss work issues and to criticize their employers about working conditions. If an employee discusses content on social media about this information, it may be considered “protected concerted activity.” A discussion of this nature involves talking to other workers about the problems or working conditions. If the employee is merely complaining about his or her job without attempting to engage other employees, this may not be considered a discussion that triggers protections under labor laws. Courts may look to various factors to determine whether an employee is engaging in “protected concerted activity,” such as how many people are involved in the discussion, the information that was being discussed, the purpose for the discussion, the identity of the parties involved in the discussion and the intent behind the discussion.
First Amendment Rights
Some workers who are terminated due to their content may attempt to argue that the employer is violating their First Amendment right to free speech. However, this right only applies to a person’s interaction with the government. Private employers can terminate an employee without violating this right. However, if the employee is a governmental employee, this right may apply and the employee may be able to pursue a claim for damages.
Knowing whether an employer is justified in terminating an employee for social media content and whether such action is legal depends on a number of important factors, including the state where the termination occurred, whether the employee was engaged in “protected concerted activity” and whether any other protections apply. An employment lawyer can explain what the state laws are that apply in the particular case and can advise an affected employer or employee on the options that may be available.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.