With everyone and their grandmother on social media these days, it’s no surprise that this has become a tangled issue for many employers. If your employee is posting negative, hateful, or offensive things online, do you have the right to fire them? And if it’s legal, is it ethical?
The answer turns out to be more complicated than a simple yes or no. Like the intricate webs of relationships between family, friends, and strangers online, the issue only becomes more complex the closer you look. Here are some fundamentals to get you started.
Can you fire someone for saying something about politics or religion (for example) with which you vehemently disagree?
Can you? It depends.
Should you? Probably not.
The First Amendment to the constitution doesn’t apply to private workplaces, of course. It only protects individuals from censorship by the government itself. There is no expectation of freedom of speech in the workplace, which is why food service workers all across America tell customers to have a nice day instead of sharing exactly what they think of their rude behavior. So if you want to ban hot-button topics while at work, you’re certainly entitled to do so. And you are (mostly) welcome to discipline or fire employees who fail to follow that rule as well.
Out in the world, however, things are a little more free. If you’re working on a political campaign and your employee is bad-mouthing your candidate, it’s reasonable to tell them to knock it off. Alternatively, you can ask them to remove any reference to their workplace in their online profile, mitigating any PR problems that might arise. And diversity of political opinions, despite the polarized environment in which we currently exist, is generally healthy.
Unlike partisan inclinations, though, religion is a protected class. Unless you have a special exemption as a religious institution, firing someone for mentioning their religious beliefs could put you at risk for a discrimination lawsuit.
Can you fire someone for saying something hateful or bigoted online?
Can you? Yes.
Should you? Quite possibly.
Is this different? Workplace advice columnist Alison Green shares: “I think that as a society we’ve chosen to treat racism, bigotry, and hate speech as different from normal political discourse, and that smart employers will do the same.” This is especially true if your employee’s statement is likely to make employees, customers, or others who interact with your business feel unsafe.
Public backlash can also have an impact on your decision making, especially if the remarks in question become a news story in themselves. The recent ABC cancellation of Roseanne is an example of this. If remarks go viral, time is of the essence.
Larger businesses might see widespread boycotts, while small ones may find a sudden glut of one-star reviews. Having conversations with leadership before you have a problem like this can help you move quickly with whatever course of action you take.
Can you fire someone for saying negative things about your company online?
Can you? Maybe.
Should you? Also maybe.
This is actually a fraught and fascinating topic. (If you’re a labor law geek, anyway.) The National Labor Relations Board, in response to a number of lawsuits and investigations, put out a fact sheet covering this subject.
In short, there are certain protected activities with which employers may not interfere. This includes employees discussing wages, working conditions, and discrimination amongst themselves. This last “amongst themselves” bit turns out to be key.
If an employee posts something about what an idiot their boss is, this is an individual activity and not protected by labor regulations. On the other hand, if a group of employees is discussing how they feel their boss is incompetent, this is protected.
You can see how hairy this could get, and it’s worth consulting an expert before proceeding with termination if there’s a chance the complaint could be interpreted as a protected activity. This applies in non-unionized environments as well as unionized ones. (Unionized workplaces probably have additional restrictions in place as well.)
Can you fire an employee for posting sexual content or photos online?
Can you? Probably.
Should you? Unless you’re the Pope, it’s not a great idea.
No, this isn’t illegal, but unless you’re cracking down on both men’s and women’s photos equally, you could be looking at a lawsuit. In general, people’s sexuality is personal content.
Better than firing is asking people to set those posts to private or remove their employer from their accounts so that you’re not associated with the content. And that’s only if it really might have an impact on your business. In many, perhaps most cases, nobody cares that your tech support person does Instagram lingerie modeling on the side.
Need more help with employee terminations?
Complete Payroll has a tool for that. Download the NYS Employee Termination Kit to get all the paperwork you need in one convenient package.
For more information and insights into the laws, best practices and complexities around terminating employees, check out our resource page, A Complete Guide to Employee Terminations. It's an all-in-one page that includes thorough insights, instructions and plenty of links to other helpful resources.