Are Social Media Complaints Grounds for Termination?
Social media is an integral part of today's society, but the public nature of these platforms can put a company's reputation at risk if an employee makes a complaint about business practices. In some cases, negative remarks can permanently taint a business's reputation.
Can an employer fire an employee for making complaints on social media? In some cases, yes.
Company Policies and At-Will Employment
Many companies recognize the potentially detrimental effects of negative social media posts from employees. Forward-thinking companies are now implementing policies and rules related to social media use.
Employees may be prohibited from posting on social media during work hours, or may only be permitted to post certain types of content.
Still, businesses must be careful in how they implement such policies and the language they use to avoid getting into legal trouble.
With that said, if an employee violates the employer's social media policy, it may be grounds for termination.
At-will employment is common in most states, which means both the employer and employee are free to part ways whenever they please. Employers can fire employees for any reason they see fit provided it does not violate any laws, such as illegal discrimination.
If the employer and employee have an at-will relationship, the employer can choose to fire the employee simply on the grounds that it did not like the content of the post.
Free Speech and Private Employers
Workers who are fired for social media posts often argue that the termination violates their First Amendment right to free speech. But this right only applies to government employees. Private employers are free to fire employees for social media posts without violating this right (provided the reason for termination does not violate labor laws).
Government employees, on the other hand, cannot be fired for making a complaint on social media.
Protected Concerted Activity
The National Labor Relations Board says employees have the right to engage in what's called "protected concerted activity," which allows employees to form unions. This protection is in effect even if the employee isn't part of a union.
Under this right, employees are permitted to criticize their employees about the company's working conditions with other employees. The key important thing here is that workers must be engaged in a discussion with other employees.
If a worker complains about his or her job and does not try to engage with other employees, the post may not be protected.
Courts will consider a number of things when trying to determine if a social media post is protected under protected concerted activity. One of the main things to consider is how many people were involved in the discussion. Courts will also consider the nature of the discussion, its purpose, what was being discussed and the intention of the discussion.
In some cases, employees are under contract with employers. In this case, the terms of the contract would dictate whether the employer can legally terminate an employee for a social media complaint.
If the employer fires a worker for a reason that is not specified in the contract, the employee may have grounds to file a lawsuit for breach of contract.