Can I fire someone over something I saw on social media?

Termination

Social media occupies a strange place between the public and private spheres, and that overlap has the potential to get people in trouble. Facebook, Twitter, and other sites give people a forum to share their lives – which can mean everything from posting personal photos to venting about workplace grievances. However, the content of these posts doesn’t always stay private. As an employer, there’s the ever-present chance that you could see something on an employee’s social media profile that changes your perception of them so drastically that you may no longer want them to be associated with your business. But are you within your legal rights to fire an employee for something they post on social media? According to the National Labor Relations Act, that all depends on the content and circumstances. Here’s how to know if you’re protected.

When It’s Legal

A contract has been breached

Did an employee share confidential company information publicly? Post a photo of sensitive materials that breaches a non-disclosure agreement? If your employee violates a contract with their social media activity, you’re well within your rights to terminate them. Just make sure you retain their signed contract in case of a potential wrongful termination suit.

They’re harassing customers or another employee

As long as you have an anti-harassment policy clearly outlined in your official employee handbook, your business will be protected in terminations for harassment and hate speech. Without this agreement like this, you could unfortunately still be at risk if your former employee can prove the comments were non-violent or did not create an issue for the company – so it’s extremely important to create and retain signed agreements on matters like this from the beginning of employment. You can read more about how to create a solid employee handbook here.

You have an at-will employment agreement

At-will employment grants employers the right to terminate an employee at any time for any reason, as long as that reason does not infringe up any rights granted by the Department of Labor. If your business is in an at-will employment state and you decide to terminate an employee for a social media post, you are likely within your rights as long as you can prove you are not violating their rights with your decision. For example, you could not fire an employee because you discover they have a disability through a Facebook post.

When It’s Illegal

It’s a concerted statement

Employees of private companies reserve the right to discuss subpar working conditions with co-workers under concerted activity protections. This means that if two or more of your employees have a discussion that casts your business in a bad light on social media, it’s not necessarily grounds for a legal termination. While it’s preferable that these issues not be broadcast publicly, this type of speech is protected, and you could be found guilty of wrongful termination.

Off-duty conduct laws

Employees have rights that protect off-the-clock actions from affecting their employment. That means you can’t typically fire an employee for a social media post they’ve made during their  private time – unless it otherwise conflicts with any of your company’s policies as described above. As with any termination, it’s important to back up your claim with as many other pieces of evidence and witnesses as possible before you take action so off-duty conduct laws can’t be used against you in a lawsuit.

Employee social media activity can be a grey area when it comes to disciplining and terminations, but with all the appropriate preparations and policies, you do have a legal course of action for protecting your business. Having a dedicated team take up the burden of HR responsibilities can help you establish a process, and avoid mistakes that make your business vulnerable to legal retribution. Bambee helps give small business owners the HR tools to grow and protect their business, so they can get back to running it. Head over to www.bambee.com to see how we can help support your organization in all its human resource needs.

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