In the modern age, employees may be concerned about risking their jobs over social media posts. Here’s what to know about social media and employment, and if you can get fired over social media.
Employers may legally terminate employees for their social media posts. However, there are two exceptions. Employees may not be terminated for social media posts that fall under the categories of
- protected concerted activity
- whistleblowing
At-Will Employment
Most employees in the United States are considered to be employed “at-will.” This means that the employee may leave their jobs at any time, and employers may fire their employees at any time for any lawful reason, or no reason at all.
The employer is fully within their legal rights to fire an employee at any time for social media posts. Even if the employee is doing a good job, the employer is still free to fire the employee for online activity.
However, if the social media posts relates to a protected class such as gender, sex, or race, the employer may not legally terminate their employee for said social media posts. Termination on the basis of gender, sex, or race is unlawful for at-will employees.
Related: At-Will Employment in California
The First Amendment
Although the First Amendment protects free speech, private businesses and employers have the power to restrict speech when it relates to their private business. Speech made while at work or about work may be restricted by the employer. Employers are free to terminate employees for speech relating to their work.
Exceptions
Protected Concerted Activity
Employees may not be terminated for their social media posts if the posts fall under “protected concerted activity.” Protected concerted activity is defined by the National Labor Relations Board as truthful criticism and discussion of working conditions, employment practices, and decisions. Employees may legally speak out about criticisms of their employer on social media without facing negative consequences.
Whistleblowing
Whistleblowing falls along the same lines as protected concerted activity. Employees who report legal, regulatory, or policy violations at work on social media are protected against termination. Employers may not legally terminate employees for reporting violations on social media.
Related: IRS Whistleblower Laws & Tax Fraud Reporting
FAQs About Being Fired Over Social Media
Does the First Amendment protect speech at work?
No, the First Amendment does not protect all speech. The First Amendment applies to the government, meaning that the government may not limit or prohibit speech. Private businesses are not required to uphold the First Amendment, and therefore have the power to restrict the speech of their employees. In most cases, employers can legally terminate an employee for their social media posts.
When are my social media posts protected at work?
Though speech is not usually protected at work, there are certain exceptions. Social media posts that fall under the categories of protected concerted activity or whistleblowing are protected speech. Protected concerted activity is when employees speak out and criticize working conditions, employment practices, and policies at a company. Whistleblowing is when employees report legal, regulatory, or policy violations of the workplace.
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If you or a loved one has been illegally fired over a social media post, get your free consultation with one of our Employment Attorneys today!