Every employer wants the best employees they can find, but in a sea of identical resumes, how can one decide who makes the cut? Many employers turn to social media accounts to see who holds up to their standards. The question is: Is using social media to decide who to hire and who to fire a violation of an American’s First Amendment rights? There are boundaries to the legality of these instances. For example, it is completely legal to fire someone over their social media content if they are: violating an employer or social media policy, damaging the company/employer’s reputation, exposing confidential information, and/or much more. Examples of these instances include people like Justine Sacco who, in 2013, tweeted “Going to Africa. Hope I don’t get AIDS. Just kidding. I’m white!” while boarding her flight to South Africa. The twitter world worked it’s magic to contact her employer about the very offensive tweet and before her flight landed, Justine had received an email from her manager informing her that she had been fired. On the other hand, there is a legal line. Employers can face scrutiny if they don’t follow the proper steps of termination or fail to consider employee protections such as the NLRA (An organization that protects private-sector employees). Many who argue that dismissal based on social media content is a violation of First Amendment rights fail to acknowledge the boundaries and that the First Amendment protects from the restrictions of the government, but does not cover the consequences of private owners.
I fully believe that employers have the right to fire someone based on a social media post as long as they follow the proper steps for termination and remain professional throughout the process. As MMSD Staff Guidelines states, “Your online behavior must reflect the same standards of professionalism, respect, and integrity as your face to face communications.” Therefore, if you wouldn’t say it to your employers face, don’t put it online.
Bell, June D. “Firing for Online Behavior.” SHRM, SHRM, 16 Aug. 2019, http://www.shrm.org/hr-today/news/hr-magazine/0918/pages/firing-for-online-behavior-.aspx.
“Employee Handbook 2016-17: Human Resources.” Employee Handbook 2016-17 | Human Resources, hr.madison.k12.wi.us/employee-handbook-2016-17.
Hyman, Jon. “EVENTS.” Workforce, 7 May 2019, http://www.workforce.com/2019/05/07/your-employees-do-not-understand-their-lack-of-free-speech-rights/.
Miller, Bridget. “Can You Fire an Employee over Social Media Posts?” HR Daily Advisor, 11 Sept. 2018, hrdailyadvisor.blr.com/2018/09/12/can-you-fire-an-employee-over-social-media-posts/.
Workopolis. “6 People Who Were Fired for Social Media Posts.” Workopolis Blog, 7 Mar. 2018, careers.workopolis.com/advice/6-people-who-were-fired-for-social-media-posts/.