Business and Employees' Social Media | Can Employers Terminate Employees for what they post?

 

The question comes up quite often in employment investigations in one form or other: "Can social media accounts/posts be used as grounds to terminate an employee?"

The attorney's answer is, of course: "it depends."

Nevertheless, the short (and correct) answer is usually: "hell yes!!"

The General Rule

Every state in the US is an at-will employment state except Montana. That means that an employer can terminate employment for any or no reason at all, provided that doing so is not for discriminatory reasons. Similarly, employees are free to leave at job at any time for any or no reason at all. Though each states has nuances to at-will employment, discriminatory reasons for termination involve:

• Race
• Color
• Religion
• Sex (including Sexual Orientation)
• Disability
• National Origin
• Age if Over 40
• Genetic Information

Some states have more protections than others. But in general, the above are off limits.

Note that social media and speech are not among the forbidden termination reasons.

But the First Amendment!

The First Amendment to the US Constitution states: "Congress shall make no law ... abridging the freedom of speech, or of the press ..." This prohibition applies only to governmental action, not behavior by private employers, companies, or individuals. There are, of course, exceptions. But for the most part, you can't make offensive or harassing commentary or posts on social media and expect protection from consequences. Companies can and do scour social media for things that may make them look bad. And employment can certainly be adversely affected.

And in many states, terminating an employee due to behavior that violates the company's code of conduct is typically defined as "with cause," meaning that unemployment is unavailable to the former employee.

So yeah - the First Amendment doesn't generally apply and likely will not protect an employee's speech on social media.

9th Circuit Court of Appeals Case

JD Supra published an amazing case summary and key takeaways. I highly recommend reading the entire article - it's short but packed with great information.

Briefly, an employee complained that a male coworker had created an Instagram account that frequently posted allegedly "sexist, racist, anti-Semitic, homophobic, and transphobic memes." Some of these posts referred to the complainant directly. The page was followed by over 100 coworkers, including the HR Manager.

The trial court only reviewed five posts out of hundreds on the account. The 9th Circuit Court of Appeals rejected this approach, stating instead that courts perform an analysis of the "totality of the circumstances" including posts that may not directly target the complainant.

Additional, the 9th Circuit Court of Appeals re-emphasized the principle that off-duty conduct (including social media activity) may be legally actionable when it stated:

Social media posts are permanently and infinitely viewable and re-viewable by any person with access to the page or site on which the posts appear. No matter where [the author] was or what he was doing when he made his posts, … employees who followed the page were free to, and did, view, ‘like,’ comment, share, screenshot, print, and otherwise engage with or perceive his abusive posts from anywhere."

Takeaways

Be sure to read the article. They list five (5) takeaways, and each of them are important. Here are one sentence summaries of each takeaway:

1. Off-duty and off-site conduct may be actionable.
2. A thorough investigation begun quickly is required.
3. Training should be given to appropriate personnel regarding hostile environment complaints.
4. Analysis of the complaint should involve the totality of the circumstances, including conduct (or posts) that may not target or specifically mention the complainant.
5. Evidence of coworkers engaging (liking, sharing, etc.) with the relevant social media content is also relevant.

Final Thought

As always, take complaints of this nature seriously, even if you may think that they are frivolous. Perform a real investigation and document the findings.

And don't let crap like this go on unaddressed.

Disclaimer

This is a reminder that we do not provide legal advice here. Also, the case mentioned above is binding only upon those jurisdictions that fall within the 9th Circuit, however influential the case may be elsewhere.

 

This post originally appeared on LinkedIn.