Question: Can an employer fire an employee 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 employees can be fired for posting political views on social media, then the employer can do that. But when does an employer overreach into an employee’s right to free speech when it 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: Generally, yes.
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, 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 on social media.
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’ digital 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 are discussing 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 very 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 speech, or that of an employee. But, in either case, I recommend reaching out to HR and learning what policies might pertain to the situation at hand.
Q: How can we manage employees returning to work after vacationing near COVID-19 ‘hot spots’?
Taylor: As summer comes to a close, so, too, do many employees return to work from vacation. This is, of course, the normal rhythm of the workplace; however, as you might have noticed, this year is everything but normal. We are all – employers and employees alike – doing the same old 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 commonsense at this point in the pandemic, but I’ll add it’s important to abide by the latest regulations and guidance, down from the local on up to the federal. Things, as you know, are seemingly always changing.
It’s also worth noting some states have mandated 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 spare your workplace of non-literal headaches and preemptively help your employees – and you – do what’s best for everyone.
