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Can Employees Be Fired For What They Post Online?

By Ben Offringa on 13 Mar 2018
  • social media background checks

We recently discussed the need for organizations to develop a strong social media policy, especially in light of the recent discovery of an alleged white supremacist middle school teacher. The teacher has since been terminated, and it brings up the question of whether or not organizations have the right to fire employees based on questionable behavior outside of the workplace. A similar question was raised last year when employers fired several workers who had participated in the violent white supremacist rally in Charlottesville, Virginia.

There’s no question that we are living in a tumultuous time where both online and offline behaviors can instantly trigger a crisis for organizations. Often times, organizations are faced with a variety of challenges when their employees’ outside work behavior doesn’t reflect a company’s values. What is in question of whether or not a company has the right to discipline that employee, and it’s one worth exploring in more detail.

 

The First Amendment

We always have to start here, as the First Amendment is so integral to culture and law in the United States. Many people cite the First Amendment as the law of the land, saying that they are only exercising their right to free speech when they participate in something like a white supremacist rally. While the First Amendment guarantees that the government cannot prevent you from expressing your views, it does not give anyone protection from the consequences of their speech. Moreover, legal battles through the years have shown that the First Amendment isn’t absolute, and that includes what is said both within a workplace and online.

 

Where you live matters

Whether an organization can fire someone for online conduct can vary widely from state to state. Most states are “at-will” employment rules, meaning that an employer can fire an employee for “good cause, or bad cause, or no cause at all,” meaning that the employer doesn’t have to justify their reason for terminating an employee. However, employers in most states can’t fire an employee for an illegal reason, such as firing someone on the basis of race, religion, gender, etc. And some states have exceptions to this law; it is not absolute. Because rules and guidelines can change from state to state, an employer needs to ensure it is complying with its state’s statutes before firing an employee.

 

Where you work matters, too

There are higher levels of employee protections against being fired if the employee works for a private organization or a public state or federal organization. Again, there are exceptions, though they mostly focus on if the employee is doing something illegal or even if their behavior is “of public concern,” meaning their behavior may not be illegal but it may be considered threatening or counter to the mission of their employer. For example, a police officer in Alabama was terminated when it was discovered that he belonged to a hate group.

Some states have laws that prohibit employers from firing employees based on their out-of-work behaviors, while others don’t. Some states very clearly define what situations in which an employee may be terminated, while guidelines and rules in other states are vaguer. The bottom line is that there’s no one right answer to whether you can fire an employee based on what they say online or do offline. There is a lot of gray area, and it’s always best to consult a legal and/or an HR expert in your state before terminating an employee.

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Of course, the best way to avoid gray areas in employment policies is to avoid hiring potentially troublesome employees in the first place. Contact us to learn how Social Intelligence empowers your organization to make more informed hiring decisions.