Be cautious when firing employees because of social media postings

The recent spate of employee terminations resulting from social media posts after the killing of right-wing influencer Charlie Kirk raises questions about what liability such terminations might have for employers. The amount of an employer’s potential liability will be based on whether they are a private or public employer.

Background

While employees have been fired in the past over their social media posts, the response to Kirk’s killing has been unprecedented in part because of a website—the Charlie Kirk Data Foundation, which posted a searchable list of thousands of people accused of posting critical messages about Kirk.

The intensity of the focus on critical social media posts about Kirk created a new problem for employers and employees, especially after the U.S. president and vice president both demanded employees making such posts be fired.

Private-sector employers

For private employers in most states, employees are considered “at will” and can be terminated for any reason, including making political statements. However, while employers can establish policies requiring a respectful workplace, the policies have to be balanced against employees’ rights. Under the National Labor Relations Act (NLRA), employees have a right to engage in “protected concerted activity”—which covers actions they take together or on behalf of their coworkers to improve wages, hours, and other terms and conditions of employment, whether in person or online, even if they are critical of management or politically charged.