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Employers Ask: Are Offensive Facebook Posts Grounds for Termination?

January 29, 2021 | by Trevor Torcello
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My employee posted _______________  on Facebook, can I fire them for that?

It is a question that has become all too common for attorneys who handle labor and employment matters. Like many legal questions, the answer isn’t black and white. Speaking only for the state I practice law in –New York—the answer is often yes. Contrary to what people believe, the First Amendment does not offer protection for an employee of a private company in this situation.

In New York, private-sector employees are considered “at-will.” Simply put, that means they can be terminated at any time, without advance notice, so long as their termination is not for any reason set forth in the protected classes. Under Federal Law, the following are protected classes:

  • Race
  • Color
  • National Origin
  • Religion
  • Sex
  • Age
  • Disability
  • Citizenship Status
  • Gender Identity
  • Genetic Information

Additionally, New York State protects employees based on the following situations:

  • Marital Status
  • Familial Status
  • Gender Identity
  • Sexual Orientation
  • Lawful use of any product or engaging in any lawful activity while not at work
  • Prior arrests, accusations or convictions
  • Political activities

With a list that lengthy, it may leave some employers wondering, ‘how can I ever fire anyone?’ It is important to remember, you can terminate an employee who fits into one of these categories, as long as the protected category is not  the reason for the termination. As always, the best practice is to document everything. If an employee attempts to sue a former employer for wrongful termination, having a paper trail documenting poor performance reviews, disciplinary issues and the like will bolster your defense.

But, back to social media. The short answer to the question, 'can I terminate an employee for offensive or inappropriate postings on social media' is . . .  usually. The best known case locally occurred in 2020 when Roswell Park terminated its Vice President for External Affairs for posts made to her personal Facebook page. You can read more about that here.

Employers must also be mindful of whether the offensive posting is raising concerns about the employee’s workplace with other employees.  In such an instance, the posting may be protected under the National Labor relations Act. Such postings should be discussed with your employment attorney before making any decision.

That being said, the question I encourage my clients to ask is not, can I fire the employee, but should I fire them? Terminating an employee for a post made on their own account on their own time can have negative impact on the organization, including

  1. The loss of an important member of your team
  2. Lost productivity and expenses incurred due to the turnover
  3. Setting a precedent for future employees
  4. Negative impact on employee morale

That last point might be the most important to consider. If your employees think “big brother” is watching, it can create a culture of fear and distrust. People don’t want to believe their employer is essentially spying on them in their personal life, and doing so can have unintended consequences.

Like most areas of being an employer, there is a middle ground. We advise our clients to consider each case individually, to have strong policies in place related to social media, and to make sure whatever action you take, you do so equally across the board. We work with clients regularly to make sure they are compliant in this area, to make sure they are well prepared, and to assist them in avoiding costly litigation. If you have concerns in the areas of employee policy or enforcement, give us a call today, we are here to help.