Can I Get Fired for a Facebook (or any Social Media) Post?

The short answer? Yes.

Every U.S. state except Montana has what’s known as an “at-will” employment rule. According to the National Conference of State Legislatures (NCSL), this rule says that “an employer can terminate an employee at any time for any reason, except an illegal one, or for no reason without incurring legal liability. Likewise, an employee is free to leave a job at any time for any or no reason with no adverse legal consequences.”

But What About My Freedom of Speech?

The First Amendment’s promise of “Freedom of Speech” is that “Congress shall make no law… abridging the freedom of speech….” Not only is it unlikely that your employer is Congress, it is less likely that they are making a law to limit your freedom to speak your mind. The First Amendment does not often apply to employment disputes.

So, technically, you could get fired for tweeting that you like the Stones more than the Beatles (the correct answer is actually the Kinks). Obviously, in most cases, it’s something a little more controversial that gets employees into hot water, like insulting their bosses or disparaging customers. If your employer sees something that reflects poorly on the organization on your wall, feed, story, or stream, they may be within their rights to terminate you. That covers most cases, however, let’s also look at…

The Exceptions

Exception #1: Contracts

Employment contracts can alter this basic doctrine of at-will employment. There may be situations in which employers are bound to take certain steps before terminating their employees. Review the documents you have signed carefully.

Some courts have even upheld verbal contracts between employers and employees. For instance, if a worker was promised that she would be given an opportunity to tell her side of the story before any adverse action was taken and was then denied that opportunity, it could be considered a breach of a verbal contract. The only way to know if you have a cause of action in these cases would be to speak with an employment lawyer in your area.

Exception #2: Protected Classes

If the Facebook or other social media post that causes termination concerns a person’s identity as a member of a protected class (e.g., a photo of the individual praying at a mosque), things can get more complicated. If the content of the post only serves to align the employee with that class of individuals (including race, sexual orientation, religion, and pregnancy), the employer could be held accountable for firing that employee on illegal grounds. Furthermore, if it can be proved that an employer used a social media post as a smokescreen for discrimination, there may be a cause of action for the terminated employee.

Exception #3: Concerted Activity

When more than one employee engages in activity or discussion to improve their pay or working conditions, it is called “concerted activity.” The National Labor Relations Board (NLRB) has been applying this rule to social media discussions for some time. From Nolo:

“The NLRB has increasingly found that employers may not fire (or take other negative action) against employees for discussing their work complaints with each other, even if that discussion happens in the more public setting of social media.”

As the page linked above discusses, airing personal grievances about work to your followers may not fit this definition, but a group of employees discussing a pay raise or unsafe working conditions likely would.

Exception #4: Whistleblowing

When employees report illegal actions by their employers, they are generally protected by law from retaliation by the employer.

Ultimately, anyone left wondering about their particular situation and what legal action they could or should take would do well to contact a local labor and employment attorney.