Ask An Attorney: Can I Get Fired For Social Media Posts?

Ask An Attorney: Can I Get Fired For Social Media Posts?

It isn’t hard to open Twitter and fire out a quick, snarky tweet about someone you don’t like. Or maybe you find yourself leaving comments on Facebook posts about hot-button political issues. Maybe you get likes. Or maybe people block or unfriend you. But that’s it, right? You can’t actually get fired for social media posts, can you?

It’s important you know that the answer is yes.

Employment-Discrimination Laws

Federal law includes a variety of provisions aimed at stopping or reducing employment discrimination.

Under Title VII of the Civil Rights Act of 1964, employers cannot “fail to refuse to hire or to discharge any individual, or otherwise discrimination against any individual … because of such individual’s race, color, religion, sex, or national origin[.]”

The Pregnancy Discrimination Act of 1978 subsequently defined “[t]he terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions….”

The Equal Pay Act of 1963 similarly prohibits employers from discriminating “between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex….”

Employers are also prohibited from “fail[ing] or refus[ing] to hire or discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age” under the Age Discrimination in Employment Act of 1967.

And Titles I and II of the Americans with Disabilities Act of 1990 prohibits employers from “discriminat[ing] against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”

Noticeably absent from these protected areas are anything to do with politics or social media.

North Carolina is an “at-will” state.

Most states, including North Carolina, are “at-will” states. This label means that both the employee and employer maintain a working relationship voluntarily (at their own will).

You can get fired for your social media posts.
Image courtesy of Szabo Viktor on Unsplash.

As the NC Department of Labor’s website indicates, “[t]he term ‘employment-at-will’ simply means that unless there is a specific law to protect employees or there is an employment contract providing otherwise, then an employer can treat its employees as it sees fit….” It also means that “the employer can discharge an employee at the will of the employer for any reason or no reason at all.”

Because NC is an at-will state, employers can fire you for your social media posts if they choose. This is true regardless of whether or not the employer is doing it because they disagree with your politics.

So, if your employer sees your latest tweet trashing President Trump or your Facebook post about hating the liberal left, that may be all they need to let you go.

But don’t my free-speech rights stop me from getting fired for social media posts?

“But what about the First Amendment?” “What about free speech?”

These are common responses when folks realize how easily their their social media and employment to collide. In fact, as reported by the Washington Post, the free-speech-and-employment debate which Colin Kaepernick joined in 2016 has put our lack of understanding about free-speech rights front and center.

The First Amendment prohibits the government from intruding on our freedom of speech. Specifically, it provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people to peaceably to assemble, and to petition the Government for a redress of grievances.”

Social media posts can get you fired.
Image courtesy of dole777 on Unsplash.

The Constitution prohibits government intrusion on most of your speech, but your employer can still fire you for social media commentary.

The important distinction? The First Amendment’s free-speech protections generally apply only to government actions. It does not, however, address what private individuals or employers can do in response to your free speech. Public employees (government entities) do abide within those restrictions.

The takeaway, then, is simple: Private employers can’t violate the First Amendment because its protections don’t apply to them. So, employers can restrict their employees’ speech — even going so far as to fire them — without violating a constitutional right.

And if your actions on social media reflect poorly on your employer, it wouldn’t be surprising if they find it easier to let you go than to deal with a loss of business as a result of your social media habits. This goes beyond only the words you use on social media, too. Did you post photos of yourself at a recent protest? Would your employer support or oppose the protest’s cause? These are wise questions to think about.

Can your employer fire you for social media posts? Given the limited speech protections the First Amendment gives to private employees, the answer is yes. So you’ll want to think twice before you post.

Do you want to learn more about how your social media posts could impact your life? Visit our last Ask an Attorney about defamation law. And don’t forget to check out our Law section, too!