Off-duty social media posts may result in termination

Posted November 14, 2017

By Ed Zalewski, PHR, editor, J. J. Keller & Associates

This year brought more news reports of public figures who were terminated for expressing their opinions via social media. Controversial postings that resulted in terminations during 2017 typically involved insensitive remarks, often expressing a political opinion, made in response to natural disasters, political controversies, and even mass shootings. In previous years, public figures have been terminated for posting insensitive racial, ethnic, or religious comments, as well.

Incidents that get reported on the evening news most commonly involve people in the public eye whose provocative expressions could result in negative repercussions for their employers. However, any employee who posts offensive opinions could face consequences such as discipline or termination, even if the employee is not a celebrity.

Thinking before acting

While employees may hold opinions and express them through social media, they might also post a remark without thinking about who will see it. Employees may “friend” their coworkers, for example, which means that an offensive post would be seen by others in the company.

That post effectively becomes a public statement that could be shared, and might even be seen by customers. The offensive remarks could result in negative publicity for the company, followed by repercussions for the employee – even if the negative outcome was not intentional.

Even when employees hold strong opinions, employers may expect them to express themselves appropriately. However, policies created to limit social media activity must be crafted carefully.

Legal considerations

The National Labor Relations Act (NLRA) gives employees (both union and nonunion) the right to discuss terms and conditions of employment with each other. While these rights extend to social media postings, they do not extend to personal opinions about non-work matters.

Employees may also mistakenly believe that their speech is protected by the First Amendment. While freedom of speech protects individuals from being targeted by the government for their expressions, it does not protect employees from consequences imposed by their employers for their personal expressions. For example, employers may establish dress codes that prohibit offensive slogans or clothing that advertises certain types of products.

Policy considerations

Even though employees’ off-duty activities on social media could reflect poorly on their companies, employers should not simply prohibit employees from posting on social media, nor should employers declare certain topics to be “off limits.”

Employers may, however, remind employees that their online activity could result in consequences to their employment. Employers may also remind them to think about the extent to which their posted comments might be shared, and that expressions of personal (non-work-related) opinions which result in angry customers or negative publicity may result in disciplinary action or termination.

About the author:

Ed Zalewski is a certified Professional in Human Resources and an editor at J. J. Keller & Associates, a nationally recognized compliance resource company that offers products and services to address the range of responsibilities held by human resources and corporate professionals. Zalewski specializes in employment law topics such as the Fair Labor Standards Act, employee benefits, and discrimination and harassment. He is the author of J. J. Keller’s FLSA Essentials guidance manual and BottomLine Benefits & Compensation newsletter. For more information, visit www.jjkeller.com/hr and www.jjkellerlibrary.com.