The answer is, it depends. While employers have broad leeway to terminate their employees, certain forms of speech – including speech posted on social media – are protected. Attorney Jennifer Spencer lays out a recent cases that inform jurisprudence.
Is it lawful to discipline or terminate employees based solely on their social media activity? Like most legal issues, it depends. In this article, we’ll take a look at the intersection of social media and the workplace, particularly how one can negatively impact the other (and vice versa).
For HR executives, navigating the nuances of employee discipline in the internet age can feel like walking on eggshells. But existing jurisprudence helps shine a light on what is lawful (and what is not) when it comes to monitoring — and disciplining — employees for social media activity.
Before we dive into examples of lawful and unlawful termination, let’s take a quick look at how we got here, and one notable case that made social media a valid workplace concern.
Fired Over Social Media Posts: How Did We Get Here?
Social media has blessed us with many great opportunities. We can connect with others across the globe and share our thoughts, memories and other important information. But social media also opens the door to several negative consequences that play out in both our personal and professional lives.
Within the past decade, we’ve seen a number of individuals “canceled,” shamed, fired or sued over careless social media posts. In general, we’ve learned that there are repercussions for sharing posts with racist, sexist and ableist connotations, offensive opinions, and those that show illegal or risqué activity. And when people identify their employer on their social profiles (as many do), a single careless post can lead to employment consequences (for employees and employers alike).
In 2013, senior communications director Justine Sacco unwittingly became the poster child for losing a job as a result of a thoughtless (and racist) social media post. As she boarded her plane to South Africa, Sacco posted on her personal Twitter account, “Going to Africa. Hope I don’t get AIDS. Just kidding, I’m white!” By the time Sacco’s plane landed, the Tweet went viral and her name was trending, and not in a positive light. Not only did that singular Tweet generate a ton of animosity toward Sacco, but it also resulted in the loss of her job.
While Sacco’s ordeal never resulted in a lawsuit, many similar stories end in litigation. And the outcome differs extensively depending on the facts of the particular situation.
When Is it Lawful to Fire an Employee for Their Social Media Activity?
Many of the newsworthy examples of individuals fired for what they posted on social media never make it to court. Most employees are aware that they can be fired for virtually any lawful reason and never consult an attorney about their termination. However, some incidents raise serious legal issues, often litigated over the course of years.
Few cases illustrate the intersection of freedom of speech and an employer’s interest in regulating employee activity better than Carr v. PennDOT. Because Rachel Carr worked for a government employer, Pennsylvania courts had to employ a delicate balancing test to see where it’s appropriate to draw the line when an employee rants recklessly on social media.
In 2016, PennDOT employee Rachel Carr published a rant on Facebook, complaining about the driving of a school bus driver. In her first post, Carr claimed she was nearly run off the road by a school bus, writing, “I end this rant saying I don’t give a flying [expletive] about those babies and I will gladly smash into a school bus.” When other commenters questioned her post, Carr replied, “A vehicle pulls out in front of me or crosses the yellow line, that’s their problem. A sedan, school bus or water truck. You’re [sic] kids your problem. Not mine.”
While Carr’s rant took place when she was at home, not working, her Facebook profile identified her as a PennDOT employee, and several Facebook users forwarded Carr’s posts to PennDOT officials. PennDOT officials responded by firing Carr. She then filed a complaint with the state Civil Service Commission to appeal her termination. The Commission rejected Carr’s argument that her rant constituted protected free speech and upheld her termination. Carr appealed to Pennsylvania’s Commonwealth Court, where the Commission’s decision was overturned.
The court agreed the termination violated Carr’s constitutional right to freedom of speech because her post touched on a “legitimate public concern — school bus safety — even though the way she expressed it is ‘abhorrent’.” The judge also found that the post did not impair Carr’s ability to do her job and it did not cause any tangible harm to PennDOT. Ultimately, the court concluded that PennDOT’s “generalized interest in the safety of the traveling public does not outweigh Carr’s specific interest in commenting on the safety of a particular bus driver … while Carr’s comments are undoubtedly inappropriate, such comments still receive protection under the First Amendment.”
In May 2020, after PennDOT appealed the Commonwealth Court’s decision, the Pennsylvania Supreme Court reversed the lower court’s decision, upholding Carr’s termination. In the court’s opinion, Carr undermined PennDOT’s interest in promoting road safety. They also explained, “it is well-settled that the state has a heightened interest in regulating the speech of its employees.” Ultimately, “few statements could be more contrary to the department’s mission of providing safe roadways for the traveling public than Carr’s comment.”
Carr’s case shines a light on the intersection (and potential conflict) of an employee’s right to express themselves (particularly off the clock) and an employer’s interest in regulating employee social media activity. It also shows how different courts and state entities interpret the law differently — with some willing to give more weight to an employee’s first amendment rights, while others recognize that employers have a need to regulate employee speech.
When Can Employers Get in Trouble for Social Media Activity?
While employers have an interest in regulating the social media activity of their employees, they need to be equally cautious about how they comport themselves online.
In EEOC v. Bourne’s House, LLC, a manager at a restaurant fired a newly hired employee after sending a social media message saying, “I’m not gonna be able to hire you. I didn’t realize you were expecting a baby.” As you might imagine, the EEOC filed suit alleging violations of Title VII of the Civil Rights Act. For better or worse, Bourne’s House may have gotten away with the termination if the manager didn’t send the incriminating social media message.
Lesson: Don’t assume that you can make statements on social media after work hours that you could not otherwise make during work hours. You cannot rescind a job offer due to a new hire’s pregnancy (or any other protected class) on or off the clock, and putting such a statement in writing on social media is bound to haunt you when the EEOC comes calling.
Another case, NLRB v. Butler Medical Transport, teaches us another important rule regarding employee use of social media. In this particular case, William Norvell, an employee of Butler Medical Transport, was fired for commenting on a former employee’s social media post. When the former employee posted that they thought their termination from Butler was unfair, Norvell responded, “Sorry to hear that but if you want you may think about getting a lawyer and taking them to court…you could contact the labor board too.”
Someone submitted a screenshot of the conversation to Butler’s human resources department and they fired Norvell for violating their social media policy. Specifically, Butler had a social media policy stating that employees were prohibited from using social media to discredit or damage the company. HR considered Norvell’s comment a violation of this policy, necessitating termination.
The case went before the National Labor Relations Board, which determined that Norvell’s termination was improper under the National Labor Relations Act because he was engaging in protected, concerted activity. Because the discharge of the former employee was of potential concern to all employees, Norvell was involved in a common cause with fellow workers when the comment was made. Ultimately, the Board considered Norvell’s comment as being for the “mutual aid and protection” of other employees.
Citing precedent, the NLRB explained, “the Board has long held that employee discussion in which advice about future action is sought or offered constitute concerted activity.” Since “Norvell posted his comments as part of an online conversation with fellow employees, triggered by one employee’s complaint about what she believed was her unjust discharge, [Norvell’s comment featured] a potential concern for all employees, who have a common interest in job security and protection against such a dismissal.”
“By advising [the former employee] of potential avenues of redress for her discharge, Norvell was making common cause with her and with other employees privy to the conversation.”
Not only did the Board find Norvell’s termination unlawful, but they determined Butler’s social media policy was unlawfully overbroad. An employer can avoid liability for an overbroad policy by showing that an employee’s conduct interfered with the employer’s operations and that the interference with operations (not a violation of the overly broad rule) was the reason for discipline. If this is the reason, the employer must say so, rather than citing a violation of the overbroad rule. The NLRB defended their position by citing Butler’s lack of evidence showing that Norvell’s posts actually interfered with operations, which may have provided them with an affirmative defense.
Lesson: Employers cannot terminate employees for concerted activity, even if it takes place on social media. Also, social media policies must be narrowly tailored to comply with the NLRA, even if workers are not currently unionized.
Where Is the Line? What Can and Cannot Be Done About Social Media?
Most workers are employed on an “at-will” basis, meaning they can be lawfully terminated for a plethora of actions. Offensive social media posts fall within the realm where employers generally have free reign to discipline an employee (particularly if the employee identifies where they work on their profile). However, some social media activity is strictly protected.
While businesses can prohibit social media use while workers are on the clock, they have to be careful. Employees venting with one another, posting on social media, or otherwise conversing about work conditions or pay is considered concerted activity — and is protected. Regardless of whether workers are unionized, they are protected by the NLRA.
Generally, employers cannot fire an employee for:
- Posts that share truthful statements about working conditions, like harassment or an unsafe workplace;
- Comments that indicate the employee’s support for or interest in joining a union;
- Suggesting to other co-workers that they contact a lawyer to get information about their rights in the workplace; and
- Demographic information like the employee’s race, sex, age, religious affiliation or pregnancy.
But there’s a fine line. Workers posting complaints online for all to see, and not engaging with other co-workers, may not be considered protected language under the NLRA. And it’s this gray area that is likely to yield plenty of upcoming lawsuits.