Can I Get Fired for My Social Media Posts?

Find out whether an employer can take action against you based on your social media posts.

By , J.D., UC Berkeley School of Law

With Facebook boasting three billion users, and millions more using Twitter, Instagram, and TikTok, chances are good that many employees have a social media presence.

You may consider your online posts to be personal -- put up for friends and family, not coworkers and bosses. But what if your boss finds your page and doesn't like what you post? Can you be fired for what you put on Facebook or other social media sites?

First Amendment Does Not Protect You From Private Companies

Many people believe that the First Amendment to the United States Constitution, which prohibits the government from abridging freedom of speech, protects their right to say anything they want, online or off. This is incorrect, however.

The First Amendment protects us from the government, not from private companies. Within limits, the government may not tell us what we can or can't say; no such restriction applies to private employers.

Legal Protections for Online Posts

Most employees in the United States work "at will," meaning they can be fired for almost any reason as long as it's not illegal. That's not the end of the story, however.

A number of laws limit an employer's right to discipline or fire employees for what they post online. These restrictions depend primarily on what you write about.

Protected Concerted Activities

The National Labor Relations Act, which sets the rules for the relationship between unions and management, also protects the rights of employees to communicate with each other about the terms and conditions of their employment.

This right applies whether the workplace is unionized or not. Lately, the National Labor Relations Board (NLRB), the federal agency that enforces the Act, has shown a special interest in enforcing this right against employers who discipline employees for their online posts.

If a group of employees post comments criticizing management or their working conditions, for example, that might be found to be protected concerted activity, for which the employees may not be disciplined or fired.

Off-Duty Conduct Laws

Some states prohibit employers from disciplining employees for what they do on their own time, as long as those activities are legal. In these states, an employee may be protected from discipline for online posts.

Political Messages

A handful of states protect employees from discipline based on their political beliefs or activities. In these states, an employee who is fired or disciplined for expressing particular political views online might have a legal claim against the employer.

Retaliation

A number of federal and state laws protect employees from retaliation for reporting certain types of problems (discrimination, harassment, unsafe working conditions, and so on). If an employee reports a problem online, and the company takes action against the employee based on the post, that could constitute illegal retaliation.

Contact an Attorney

If you've been fired for something you've posted on social media, you might have a wrongful termination claim against your employer. Consider contacting an experienced employment law attorney to discuss whether you have a case.

An attorney can develop the evidence in your case, negotiate a settlement with your employer, or even file a lawsuit in court.

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