Online interactions often have a more adversarial and less courteous tone than traditional, in-person discussions. In certain instances, an employee’s conduct on social media may escalate beyond mere disagreement and enter the realm of aggressive or hostile behavior.
It’s no surprise that people are more frequently taking to social media to express their viewpoints on contentious societal issues, and that this sometimes spills over into professional environments. Although employees may voice their beliefs on social media in their personal time, there is a growing expectation—both within corporate governance structures and among the general public—that employers exercise oversight and, where appropriate, impose disciplinary measures in response to conduct deemed inappropriate or damaging to the organization’s reputation.
These circumstances frequently compel employers to evaluate the scope of their legal authority to regulate and, if necessary, discipline employees for off-duty social media activity, particularly when their conduct conflicts with company policies or adversely affects the workplace.
Legal Overview
Pennsylvania follows the at-will employment doctrine, meaning employers can (in theory) terminate employees at any time, for any reason—or no reason at all, so long as that reason doesn’t violate the law. Conversely, this also means that employees can quit their jobs at any time, without notice or explanation. While this may appear to suggest that employers can terminate employees for their social media posts without worry, such situations are rarely so simple.
Individuals critical of employer actions in response to employee social media posts often point to the First Amendment, which protects speech from government censorship. Importantly, the First Amendment right to free speech does not extend to private employers.
If an employee works for a private company, the employer can discipline or fire the employee for social media posts—even if made off-duty—without violating the First Amendment (unless the post is protected by other laws such as Title VII, the ADA, the PHRA, etc.)
Types of Social Media Posts That May Result in Termination
While it is difficult to provide a rule of thumb for discipline-worthy social media activity, the following types of social media posts and comments may give rise to discipline from private employers:
- Content containing offensive, discriminatory, or inappropriate language
- Disclosure of confidential or proprietary company information
- Posts that harm or undermine the company’s reputation
- Threatening language or advocacy of violence
- Spreading false or misleading statements about the employer
Such posts may be especially concerning if the employee’s profile provides a clear connection to the employer, such as publicly listing their place of employment directly on the profile.
Best Practices for Employers
With the rapid rise of social media and its growing potential to spark controversy, employers should carefully consider whether to respond to employees’ off-duty online comments.
It’s wise for organizations to adopt the following proactive strategies:
- Develop a social media policy for employees that clearly outlines the expectations for social media activity and the potential consequences for violating the policy.
- Carefully consider whether discipline is appropriate on a case-by-case basis.
- Enforce the social media policy consistently across political viewpoints.
- Record any disciplinary measures taken and seek legal advice when appropriate.
