Ask HR: Can Comments on Facebook Get Me Fired?

By Johnny C. Taylor, Jr., SHRM-SCP August 31, 2020
Ask HR: Can Comments on Facebook Get Me Fired?

SHRM President and Chief Executive Officer Johnny C. Taylor, Jr., SHRM-SCP, is answering HR questions as part of a series for USA Today. The questions are submitted by readers, and Taylor's answers below have been edited for length and clarity.

Do you have an HR or work-related question you'd like him to answer? Submit it here.


Question: Can an employer fire employees for what they post on their personal social media accounts if the posts are not discriminatory, incendiary, etc.? I've read that as long as an employer has a policy stating that employees can be fired for posting political views on social media, then the employer can do that. But does an employer overreach into an employee's right to free speech when [a post] has nothing to do with the work the employee has been hired to do and is not on a company social media platform?

Johnny C. Taylor, Jr.: Short answer: An employer generally can fire an employee over comments made on social media.

Unless there is a collective bargaining agreement or employment contract in place, employers can fire employees with or without reason because employment in most states is "at will." It might sound harsh, but let's remember this goes both ways: Either party (employer or employee) can end the relationship for any reason at any time.

As far as the First Amendment goes, yes, it does prevent the government from passing laws or taking actions that limit free speech. But let me be clear: It does not apply to private employers, nor does it protect someone from losing their job over comments made on social media.

All that said, in certain cases there may be protections for employees facing termination for their social media posts. In recent years, the National Labor Relations Board (NLRB) has issued guidance for employers regarding employees' conduct on social media. Private-sector employees have the right to engage in what is referred to as "concerted activity" under the National Labor Relations Act. An employee's posts on social media platforms might be considered concerted—or, in other words, protected—if they discuss working conditions such as pay and benefits.

I'll add this: While employees have certain rights with respect to personal privacy, companies also have the right to set a certain standard of conduct for their employees. Today, it's common for employers to have a social media policy that establishes such expectations. It might sound Orwellian, but, from the perspective of an organization, it's usually less about censoring your speech and more about protecting their image. Whether you like it or not, on the clock or off, in public or online, you are always a brand ambassador!

It's not clear from your question whether you are concerned about your own speech or about that of another employee. In either case, I recommend reaching out to HR and learning what policies might pertain to the situation at hand.

I wish you the best.


Question: How can we manage employees returning to work after vacationing near COVID-19 "hot spots"?

Johnny C. Taylor, Jr: As summer comes to a close, many employees are returning to work from vacation. This is, of course, the normal rhythm of the workplace; however, as you might have noticed, this year is anything but normal. We are all—employers and employees alike—doing the same work but under extraordinary circumstances that demand coordinated and mindful navigation.

I would start by confirming your organization has a policy that anticipates this issue. It should state if employees travel to such a hotspot (as designated by state and Centers for Disease Control and Prevention guidance), then they should ease back in by working at home initially. That's probably common sense at this point in the pandemic, but I'll add it's important to abide by the latest guidance, from the local level on up to the federal level. Things, as you know, are always changing.

It's also worth noting some states mandate that travelers self-quarantine upon returning from a trip. In other words, the details may already have been decided for you. You didn't mention where you work, so I can only say you should always know the latest and most relevant details. Some changes may be slight. But others might mean the difference between a helpful recommendation and an absolute mandate.

Of course, not every job can be done from home. In such cases, employees can be placed on leave or continue to use their paid time off. While employers aren't required to pay for extra leave, I strongly recommend that they do so to the degree and extent they are able. (Again, keep current with the latest changes to leave regulations and law, on all levels.)

While some employers worry a few employees might exploit these policies, it's demonstrably more important to exercise due caution and true empathy. After all, if employers don't act and passively allow the cost of leave to come from the pockets of employees, other workers with similar plans and a stronger need for their paycheck may be less inclined to disclose their travels. Not only does that endanger the health and safety of your workplace, it's downright wrong. People depend on their paychecks and, for some, missing just one—by no fault of their own—could spell disaster.

Of course, best practice is to create a policy and procedure that explains requirements before employees go out on vacation leave. Doing so will keep your workplace healthy and pre-emptively help your employees—and you—do what's best for everyone.



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