Can A Social Media Post Get You Fired?

Social media is an integral part of our lives, shaping the way we share information and engage with the world. Platforms like Facebook, Instagram, or TikTok offer numerous benefits, but they also present challenges when it comes to navigating the delicate balance between personal and professional lives.

You might believe your social media activity is none of your employer’s business, but that’s not always the case. Information shared online can be easily (and quickly) disseminated to a large audience, but it is also not easily removed if it becomes harmful. Anything you post can have an impact on how people perceive you on a personal and professional level.

Employers may be concerned about how your posts might impact their company’s reputation if people online figure out where you work — which anyone curious enough probably can. But to what extent may employers legally act on this interest?

The only US state that is not an at-will employment state is Montana. This gives employers broad freedom to make decisions about their employees’ jobs. Employment laws then set the boundaries of that freedom — like a fence around a field — by defining what employers cannot do rather than what they can. In other words, an employer’s conduct, including the decision to fire you, is typically not considered illegal unless a law specifically prohibits a particular action.

Various federal and state laws set legal boundaries for how employers can respond to employees’ social media activity. These laws provide certain protections, but employees should also keep other practical considerations in mind before hitting “Post.”

Legal Protections

The First Amendment

People might believe the First Amendment shields them from an employer’s wrath if they are upset about their posts. After all, doesn’t the amendment protect your right to speak freely?

Unfortunately, that mostly only applies if you’re a government employee, as the First Amendment is designed to protect individuals from government censorship. A government employer disciplining an employee for social media activity may raise First Amendment concerns. In contrast, a private employer is not the government, so its decisions — such as terminating an employee, demoting them, or denying them a bonus based on a social media post — typically don’t implicate the First Amendment.

Even government employees, however, are not fully protected by the First Amendment when it comes to workplace speech. The right to free speech is intended to allow people to criticize the government and engage in public debate. Therefore, the First Amendment generally only protects employees speaking on matters of public concern, not employees airing personal grievances.

A 1968 case, Pickering v. Board of Education, helped define what counted as “matters of public concern.” In the case, a teacher sent a letter to a newspaper that criticized how the school board allocated public funds. The court considered the letter protected speech because it addressed an issue of public importance.

The U.S. Supreme Court in Connick v. Myers solidified the Pickering decision. It created a two-step test to determine whether the speech of a public employee is protected: First, the speech must involve a matter of public concern, and second, the employee’s interest in speaking on that matter must outweigh the employer’s interest in maintaining an efficient workplace. The court explained that whether an employees’ speech qualifies as a matter of public concern depends on “the content, form, and context of a given statement.”

In Connick, the court held that an assistant district attorney’s disagreement with her supervisor’s decision to transfer her did not pass the test. The employee’s speech didn’t seek to inform the public of any failure to execute governmental duties or any potential breach of public trust, and thus, was not of “public import” or protected.

State Laws

Some states have laws or statutes that protect both government and private employees from being disciplined for what they do outside of work (as long as they’re not breaking any laws, of course).

The California Labor Code, for example, mandates that employers may not retaliate against employees for engaging in lawful conduct during non-working hours away from the employer’s premises. Similarly, New York’s Legal Activities Law prohibits discrimination against an employee because of their legal recreational activities, assuming the activities occur outside work hours, off the employer’s premises, and without the use of the employer’s equipment or other property. This can include actions such as posting photos from a Pride event, expressing support for a political candidate, or sharing information about one’s salary — activities that may be controversial but are still legal.

Some states don’t have laws that specifically address social media but do have retaliation laws that may apply. Retaliation laws protect employees who engage in “protected conduct,” such as reporting discrimination to human resources or raising concerns about potentially fraudulent or illegal activity. A social media post would have to relate to a potential violation of law or public policy for an employee to pursue a retaliation claim; complaining about a boss online doesn’t fall under “protected conduct.”

The employee would also have to prove that their employer saw the post. To constitute retaliation, an employer must be aware of the potential violation, have an opportunity to address the issue, and then instead choose to take an adverse action, such as demoting or terminating the employee. Social media posts often fall short because they are typically private or not directed at the employer, meaning the employer might never receive notice of any violations. An employee who can show the employer did see their post — because it was shared publicly on LinkedIn, for example, or brought to the employer’s attention — may have a plausible (though challenging) basis for a retaliation claim.

The National Labor Relations Act

Social media posts discussing the terms and conditions of your employment might be protected under the National Labor Relations Act (NLRA). The NLRA encourages collective bargaining and protects employees’ rights to improve their working conditions, so actions like discussing your salary with colleagues on a Facebook page would likely be protected.

The NLRA’s protections are extensive. In NLRB v. Pier Sixty, LLC, an employee made an obscene and explicit Facebook post that directly attacked his supervisor, but it was protected because the post referenced union activity and was published to coworkers. The court noted that online forums like Facebook are “a key medium of communication among coworkers and a tool for organization in the modern era.”

However, the NLRA does not provide blanket protection for all speech related to the terms and conditions of your employment. Statements discussing confidential or proprietary employer information, for example, would likely not be protected.

Anti-Discrimination Laws and Speech Protections

Let’s say you post an Instagram story about a religious celebration — your employer cannot then demote or fire you for your posts because it might be sharing details about your religion beliefs. They would essentially be punishing you for expressing your protected traits.

There are several factors that can help you build a solid argument that your employer unlawfully discriminated against you based on any protected speech:

• Employer awareness: Can you show that the decision makers behind the adverse action saw or knew about your social media activity?
• Timing: Did the adverse action occur very soon after your social media post, therefore indicating a possible causal link?
• Pattern of behavior: Did your employer take adverse actions against other employees in your protected class for making similar posts? Or, conversely, did your employer not punish employees outside of your protected class, even though they made similar posts?

Factors to Consider Before Posting

There are several laws in place that protect an employee’s right to engage in social media, but that doesn’t mean it’s a free-for-all where employees can do whatever whenever they want. Employers can draw some reasonable boundaries, and there are other considerations employees should keep in mind when deciding how and when to use social media.

Employer Policies

Some employers have policies that govern employees’ conduct on social media, both during and outside of work. These policies can outline when it’s inappropriate to use social media, whether any conduct is prohibited, and what the consequences are if you violate policy.

You generally agree to a company’s policies when you start working for them. Down the road, maybe you post something on social media that violates the policy and results in discipline. You might decide that you disagree with the policy and that your post shouldn’t be prohibited. Changing your mind later doesn’t change the fact that you agreed to the policy in the first place though. It’s more difficult to challenge a disciplinary action that you were warned of (and agreed to).

In most cases, employers don’t have policies that explicitly mention social media use. Instead, they probably have a policy regarding general employee behavior that may reflect on the employer and its values. A policy might state that employees must maintain a professional demeanor and that any behavior that could damage the employer’s reputation could be subject to discipline. Wearing company gear at a white supremacist rally or posting a hate speech comment on the company’s social media page are often legitimate bases for discipline.

Employer Equipment

A lot of employers have rules about what employees can and cannot do while using company-issued devices. Those devices are company property, so employers have a strong (and usually valid) argument that they can control activity on them, regardless of whether it occurs during work hours or in an official capacity.

Employers have some authority to monitor and search employer-issued devices for reprimandable behavior — with certain limits, such as privacy laws, anti-discrimination laws, and any company policies that restrict how monitoring is conducted.

External Professional Regulations

Your profession or industry may have rules that would limit your social media activity, regardless of your employer. Lawyers, for example, are expected to follow professional and ethical rules to maintain their legal licenses. They’re required to keep client communications and information confidential, so posting non-public information about a case would likely jeopardize their legal license. Health professionals are similarly obligated to protect patient information.

Discipline regarding your professional qualifications (such as suspension or disbarment) is handled by a third party, not your employer. However, your employer may impose their own discipline as well. Employers have a valid interest in ensuring their employees follow all professional regulations. It may be reasonable to reprimand you if your social media post raises compliance concerns or risks the business’s reputation for following professional and ethical standards.

Professional v. Social Accounts

Context matters. The platform you post on, the audience who sees your activity, and how you represent yourself online can all influence how your employer reacts to your social media activity. Sharing a picture of you drinking on Facebook is not the same as posting it on LinkedIn.

On LinkedIn, your primary identity is as an employee. You usually have your employer identified, and the purpose of the platform is to network with colleagues and share your professional updates. In contrast, you likely don’t identify your employer on Facebook, and you limit your audience to friends only. Thus, it’s understandable if an employer expects a certain degree of professionalism on LinkedIn but regards Facebook activity as private conduct.

Legal Advice

The legal landscape on how social media intersects with employment law continues to evolve. You may need the help of an experienced employment attorney to help navigate the protections available to you.

If you’ve been punished at work because of a social media post, contact The Employment Law Group today.

FREQUENTLY ASKED QUESTIONS

Q: I applied to a job but was rejected because of my social media posts. Is that legal?

It depends. Pursuing any employment-based claim when you are not an official employee can be difficult. For some statutes, legally being an employee is a prerequisite to filing a claim.

Most employers also don’t give explanations for rejecting a job application, making it hard to know if you were declined because of your social media activity or to argue that you were rejected on pretext.

That being said, it is not an open-and-shut case. Some statutes explicitly protect applicants from discrimination, such as Title VII of the Civil Rights Act.¹ You may have a civil rights claim if you can demonstrate a link between your social media activity and the rejection. However, this would only apply if the employer rejected your application for a discriminatory reason, not if it was because your social media presence didn’t resonate with the employer’s values or reputation.

Q: My employer asked for access to my private social media posts. Are they allowed to do that?

Generally, no, but that doesn’t guarantee they won’t see your private posts regardless.

Your employer generally can’t force you to give them access to your private social media accounts, but they might become aware of your posts through some other means. Perhaps a coworker followed you on social media and shared your posts with your employer, or perhaps you used your personal accounts on company devices and your employer saw it while monitoring activity. It’s in your best interests to keep your work and private lives as separate as possible.

An employer may still discipline you for a post that violates its policies or code of conduct — even if it’s posted on a private account — if they come across it somehow.

Q: I post regularly about my personal hobby on a public social media account, occasionally even during the day. Can my employer fire me for this?

Let’s say you post makeup tutorials on an Instagram page and engage directly with followers about tips and tricks. Maybe you have enough followers that you get sponsored for some of your content. Is this cause for termination?

This mostly depends on the type of job you have and whether your employer has any policies dictating your activity during the workday. Some employers are concerned with whether you’re completing assigned work at the expected level, and so minor personal activity during the workday might be overlooked if the employer concludes that it doesn’t interfere with your productivity. Other employers expect their employees to refrain from any personal activity during the workday. In such situations, an employer can legally assert that making non-work-related posts during the workday is cause for termination. Remember, unless a reason for terminating an employee has been made illegal, it is otherwise legal, regardless of how trivial or arbitrary it might seem to the employee.

The bottom line is to be aware of your company’s policies and ensure your conduct is not in conflict with them.

Q: Can my employer fire or demote me based on what my friends post about me on social media?

Yes, in some circumstances. As with your own social media activity, it depends on what’s posted.

Unfortunately, we don’t have total control over what’s posted on social media, and there are times where we have a social media presence without intending to have one. You might have been at a party where others were taking illegal substances, and someone posted a picture with you in it. Or, you might have a Facebook friend that made vulgar, homophobic posts and tagged you among other random friends to spread the post further.

You weren’t the one engaging in questionable conduct or speech, but your identity comes up in connection with it. Your employer might take issue with being associated — even tangentially — to certain conduct online. Therefore, posts about or related to you can influence your employer’s decisions regarding your employment.

However, the same rules that apply to your own content apply to those of others. Your employer can’t fire or demote you because your friend added you to a Black Lives Matter page, for example. That activity is clearly tied to a protected trait (i.e., race), and it doesn’t matter if you weren’t the one to do it. You would still be able to challenge your employer’s decision on the grounds that it was motivated by discrimination.

Footnote

1 Title VII Civil Rights Act § 2000e-2(a)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.