By Derek Ross, CLMS, HR Consultant, East Coast Risk Management
In recent days, we have seen many stories of employees being terminated after a social media post came to their employer’s attention. Those posts may have revealed controversial political views or included highly insensitive comments. You may have seen the story of the college football coach who was fired for his post calling the Governor of Georgia a racial slur or the CEO of a data analytics firm who was fired after being arrested for his role in the U.S. Capitol demonstrations.
Social media’s interaction with the workplace continues to be a hot topic. We have received many calls and emails from employers asking if they can fire an employee for a social media post created on the employee’s personal account though posted outside work hours. The short answer is “yes,” but you must proceed cautiously.
Most of your employees feel comfortable saying whatever they like, whenever they like, on social media outlets. Many speak freely, without fear of consequences, even when it involves controversial subjects.
Most people rightfully believe their right to free speech is protected under the First Amendment. But sometimes their understanding of the extent of that amendment is inaccurate. Here is the text of that amendment:
- “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
The First Amendment prohibits government from infringing on free speech. It does not apply to private employers. Even public employers have some room to determine their own policies.
But it isn’t always the employee’s own post that gets them in hot water. If someone else posts a picture on social media showing one of your employees engaging in questionable or possibly illegal activities, you still may have room to take action.
Before taking any action, however, all employers should consider their state’s laws. Most states do not prohibit employers from terminating an employee for conduct related to their political views or activities; however, some states have passed Anti-Discrimination, Off-Duty Conduct and/or Coercion Laws that could limit an employer’s actions depending on the circumstances.
Employers should also consider any precedents they may have already set regarding similar situations. You want to be careful that your actions cannot reasonably be considered discriminatory or retaliatory if you have allowed other employees to get away with similar comments or activities.
A carefully written, clearly communicated, and consistently enforced social media policy will not only clarify expectations to your employees, but it will help you navigate through a firestorm. For tips on how to create a social media policy, please see our previous blog: https://eastcoastriskmanagement.com/social-media-and-the-workplace/.
If you are an employer with questions about managing your social media policy or any other safety, workers’ compensation or human resources issue, contact East Coast Risk Management by calling 724-864-8745 or emailing us at hrhelpline@eastcoastrm.com. We will be happy to help!
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