HR Policies & Procedures

Can You Fire an Employee over Social Media Posts?

Can an employer fire employees solely over what they’ve posted on social media? Does the answer change, depending on whether the post was made from a work or personal device? Does it matter whether the person’s social media account is connected to the employer in some way?

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Turns out, the answers aren’t always black and white. While employers can and do fire employees over social media issues, there are also instances where it would potentially be illegal to do so.

When Is It Legal to Fire an Employee over Social Media Posts?

Here are some examples when it is usually legal to fire employees over their social media posts*:

  • When their behavior clearly crosses a stated employer policy or other obvious line, such as being threatening or harassing toward other employees.
  • When the behavior is clearly violating the social media policy, or when the employee is on social media for personal use while on the clock. (This likely wouldn’t be something that would result in termination for a first offense, but it could escalate.)
  • Behaving in a way that tarnishes the employer’s reputation, either by association or simply from the employee’s conduct. (Note: There are exceptions to this, which we discuss below.)
  • Divulging confidential information.
  • Posting things that prove the employee has lied to the organization, such as taking medical or disability-related leave but then showing on social media that the reason for the leave was not valid. (Employers should proceed with caution on this one and investigate before making assumptions too quickly.)

When Is It Illegal to Fire an Employee over Social Media Posts?

Here are some examples of when an employee’s social media posts should not result in firing, even if it may seem warranted otherwise:

  • When the post is protected in some way. The most prominent example that some employers overlook or get wrong: Employees should not be fired when their social media post could be considered “concerted activity” and could, therefore, be protected activity under the National Labor Relations Act (NLRA). Concerted activity includes discussing working environment among coworkers—even in a negative way in public. Employers can get into trouble when they’re too restrictive in their social media policies—overbroad restrictions or repercussions can go against an employee’s NLRA rights.
  • When there are specific rules that must be followed before a termination (and those are not followed). For example, there may be contractual stipulations with the employee’s union that outline steps that must be taken before any termination. If those steps aren’t followed, the termination may be illegal—even if it would have been fine otherwise.
  • When the social media post represents some other protected activity, like whistle-blowing, or protected reporting of something else, such as discrimination or harassment.
  • When the employer/employee are in a state that has other protections. Some states do not allow employers to fire employees for conduct outside of work, as long as the activities themselves are legal. This means that it would be much more difficult for an employer in one of these places to fire someone for conduct it finds distasteful that is still nonetheless legal. Some places also have protections in place for political speech.

Note: Some may wonder why this is not an issue of freedom of speech. Freedom of speech, as defined in our First Amendment rights, protects individuals from governmental restrictions on speech—but it does not, in fact, mean that things we say can never have any consequences at all and does not usually apply to private employers. Employers have the right to impose consequences, and doing so does not infringe on the employee’s First Amendment rights.