Can you fire employee for Facebook post? Employer tips for policing social media

Two things are eminently clear as the 2020 election season ramps up: (1) Everyone has an opinion, and (2) they aren’t shy about sharing it. So, what’s an employer to do when an employee likes or shares an inflammatory article on Facebook or uses his 280 characters on Twitter to start a battle with a local government candidate? Is the employee’s speech protected? Does the National Labor Relations Act (NLRA) apply? Here are a few considerations.

First Amendment

Generally, a private company can discipline an employee for a problematic social media post without issue because the First Amendment applies only to government action. Union negotiations may limit the employer’s freedom, however, if a collective bargaining agreement prohibits the company from firing an employee because of online activity.

National Labor Relations Act

While politically oriented social media posting isn’t likely to fall under the NLRA, employers should remain conscious of how the Act could limit their policy’s enforceability if the speech they’re seeking to prevent is related to the terms and conditions of employment.

Under the NLRA, you can’t prevent employees from discussing things such as pay, benefits, or working conditions if their actions could be construed as "protected concerted" activity. So, an individual employee’s tweet griping about the bad day she had at work likely isn’t protected, but a Facebook group comprised of current employees sharing complaints about their supervisors may be covered.

State employee privacy laws