The Legalities of Employee’s Social Media Conduct
We’re living in quite a challenging time. Divisions among Americans seem more drastic than ever. Amid the usual stressors of an election year, we’re also still living amidst a global pandemic that’s unlike anything we’ve seen in our lifetimes. Opinions range as far as they possibly can on either end of the spectrum. So, it’s understandable that people share these opinions and stressors on their social media. Which brings us to the question – can employees be fired for social media posts?
Along with the stressors of everything going on in the world, there are the regular stressors employees post about. Aside from family life and all of the obvious stressors, most people’s largest stressor is work. To combat this stress, most of us vent our frustrations…sometimes on public platforms. Learn the different reasons employees can be fired for social media posts and how to handle them within your business.
Freedom of Speech?
This is possibly the biggest argument against termination on the grounds of social media misconduct. Many people believe their first amendment rights protect comments on social media. However, what many people forget, is the paperwork they sign upon employment. Before you sign codes of conduct and other non-disclosures, it’s important to read them.
This paperwork could outline how you should represent your company – including on social media accounts. If you’re living it an at-will state without limitations, you can be fired for any reason – including what you post on social media. This list by RocketLawyer specifies which states have limitations and exceptions to “at-will terminations.” In short, employers have the right to set professional standards for their employees. If you violate their professional standards by acting inappropriately on social media, they can protect themselves with termination.
Reasons Employees Can Be Fired For Social Media Posts
Now that we’ve covered the argument against it, let’s explore the reasons when employees can in fact be fired for social media posts. According to a 2017 survey by Career Builder, 70% of employers look at a potential hire’s social media accounts before hiring them. So, it’s understandable they’d continue checking your accounts throughout your employment. This is especially true if employees connect with the company’s social media accounts. If you’re an employee of a business, you bet they’re going to check-in on how you’re representing them.
As we just mentioned, employers have rights that protect them from bad PR. This includes firing employees for social media posts. There are a few rights that protect specific employee conduct – which we’ll get into shortly.
Posting Negative Comments About Your Employer
This seems like a no-brainer. Of course, you can get fired for social media posts complaining about your employer! After all, would you still be friends with someone who was openly insulting you on Facebook? Surprisingly, people badmouth their employers on social media all the time. There is a small caveat to this rule, however.
If you’re the unfortunate employer getting bad shout-outs, you have some options. However, it’s important to remember that if an employee is talking with other employees about ways to improve their workplace, this is a protected concerted activity. The protected concerted activity applies under the National Labor Relations Act. To have protection, employees must be discussing issues with co-workers and the discussion must be constructive and aimed towards improving labor conditions (hence it falls under the NLRA). This can include discussing things like wages, working conditions, etc.
There’s no protection if the employee is just griping about how much they hate their employer just to ‘vent.’ This also applies to any threatening or violent language. For example, a comment like “I wish my workplace would blow-up” is the perfect grounds to be fired for social media posts.
Posting About Private Company Information
This may seem like another no-brainer, but sometimes employees aren’t privy to what’s private information and what’s public. There are instances when your employers want you to keep quiet. If you’re posting about company information that isn’t public yet, you can land yourself in a mess of trouble. No matter how harmless the intentions, some things must be kept secret.
This employee, for example, shares her termination story after sharing a post about landing a huge new client. She had exciting news to share with her friends and followers. Her company, however, had a policy specifically regarding this type of social media conduct. Basically, they felt her post could have let the cat out of the social bag, leading to the loss of that huge client. In short, the lesson for employees is to tread lightly because no matter how careful you are, it could still get you into trouble.
It’s also important to avoid new product information. The recommended rule of thumb for employees is to hold off posting about anything if the employer hasn’t already done so. If employers post about it or announce it on their public social media accounts, odds are it’s fine for employees to talk about as well (especially in a positive way).
Inappropriate, Racist, or Sexist Comments
Nobody wants to associate with anyone that’s making inappropriate, racist, or sexist comments. Let alone making those comments on their social media accounts. Understandably, this is especially true for businesses. Most companies have policies about discrimination based on race, sex, or sexual orientation.
Plenty of companies have had to publicly terminate an employee for the aforementioned reasons. For example, this employee went viral for her racist comment and was promptly fired for social media posts, specifically on her Twitter account. If this issue arises for your business, it’s important to act quickly. Again, you don’t want to associate with anyone making those types of comments, let alone how it can impact your other employees and clients. At that point, it’s a matter of protecting everyone else from the potential for discriminatory and hurtful behavior.
Posting During Work Hours
This should be one obvious reason you can get fired for social media posts. If you’re using social media during work hours, it’ll catch up with you sooner or later. There are very few employers that would like an employee to waste time scrolling when they’re clocked in.
We’ll go into what you should include in your social media policy a little later, but this is definitely something to remember. While you’d think employees know not to use their phones for personal things while on the clock, it’s a good idea to put it in your handbook anyways. This way, they’ll know straight away what the rules and expectations are.
State Protections for Political Groups
There are certain states with specific protections in place for political groups.
There are five states that have very strict protections:
- New York
- North Dakota
In these five states, employees can engage in any off-duty conduct and political activity as long as it’s lawful. As SHRM explains, protection applies, “no matter how distasteful their colleagues may consider their affiliations.” Thankfully, all of the above rules still apply in these five states, so employees cannot engage in hate speech and claim it’s in the name of their political affiliations.
Creating a Social Media Policy for Your Company
To protect your company, it’s important that you have a social media policy. This should outline why your employees could be fired for social media posts. You should also think about implementing a training policy so your employees understand why it’s important to act professionally on social media. Include this policy within your employee handbook to ensure employees know your expectations from the get-go.
What to Include in Your Social Media Policy
- Ask employees not to represent your business unless they are authorized to do so.
- If they make opinions about their industry, employer, or specific tasks, ask them to add a disclaimer stating that their views do not necessarily represent yours (as their employer).
- Request they avoid sharing any proprietary or confidential information about the company or its customers, prospects, partners, or suppliers.
- That they agree to never post anything that threatens, harasses, or bullies based on race, gender, sexual orientation, etc.
- Ask them to refrain from any behavior that creates a hostile work environment.
- Outline how your company will handle inappropriate social media behavior, including steps for management.
Unless their position requires them to make posts on social media directly connected to your business, you can ask employees to refrain from mentioning your company at all. For example, a sales professional or marketing manager may rely on social media to spread information related to your company. Employees in areas that don’t share information with employees, on the other hand, don’t really have a reason to talk about your business or products. This really can depend on the context though.
If your company culture is such that you engage a lot with employees, they may be brand ambassadors for your business. This means the share various aspects of the job like company parties, outings, perks, etc. As long as their content is appropriate and positive, this is a great endorsement for your business.
Better Safe Than Sorry
This saying applies to both sides of firing employees for social media posts. Read the various protections employees have before making a decision if an employee commits any of the above offenses. On the other hand, don’t be too lenient with employees. If they act inappropriately, take action as soon as possible. If you follow the steps you’ve created in your social media policy, you always end up on the right side of poor social media conduct.