Consider this scenario. You are a business owner, and after a long day, you like to unwind by scrolling through your Facebook feed to catch up on the news. As you read, you unfortunately come across something disturbing; one of your company’s employees has posted a public message saying your company doesn’t treat its employees properly. You may be wondering if you can legally fire the poster for this offense. To answer that question, there are many things to consider.
First and foremost, some states follow a “right to work” policy in which an employer can decide to fire an employee at any time, with or without a reason. The employer must only prove the employee is not being fired due to their race, ethnicity, age, gender, political affiliation, sexual orientation, etc., and that the firing was not done in retaliation for an act of whistleblowing. The 25 states which have passed Right to Work laws are: Alabama, Arizona, Arkansas, Kansas, Florida, Georgia, Idaho, Indiana, Iowa, Louisiana, Michigan, Mississippi, Nebraska, Nevada, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Wisconsin, and Wyoming.
In all other states, employees can be fired for social media postings only if they are determined not to be part of a “concerted activity” of at least two employees working together in an effort to improve working conditions, increase pay, or solve other workplace problems. This is where it can be tricky. The example given at the beginning of this article was a real one, and in that case, the National Labor Relations Board determined that firing the employee was legal because he or she was not acting on behalf of other employees or seeking their input, and therefore it was not a concerted activity. However, in another case mentioned on the legal website NOLO, an individual who criticized her supervisor on Facebook was protected from firing because several coworkers commented on her posting, thus making it a concerted activity.
As with many decisions you must make as a business owner, it is recommended you speak to legal counsel before firing an employee over a social media incident. You may wish to be proactive and work with your counsel to establish a written social media policy for your company.