Can you fire an employee over a social media post?

A lot of people (incorrectly) believe that the U.S. Constitutional guarantee that permits free speech equals a right to say anything they want — online or off — without consequences.

While the government can’t tell people what they can say, you (as an employer) actually do have a right to discipline or fire an employee for what they say online — within reason. If your company name has suddenly gone viral for all the wrong reasons, here’s what you need to know.

Where’s the line between the employee’s rights and your company’s interests?

California is an at-will employment state, so you can generally fire an employee who posts anything that you find reprehensible, offensive or otherwise damaging to your brand unless their posts relate to:

• Political messages: While not an expressly protected category under state laws, the labor code provisions on this issue are complicated enough that it would be unwise to take action against an employee for political-minded online activity without experienced legal guidance.
• Pro-union messages: The National Labor Relations Act protects the rights of employees to discuss the option of forming a union.
• Workplace conditions: Employees are also allowed to talk to each other about bad working conditions, their wages, their hours and other workplace problems.

On the other hand, you can discipline or fire employees who post disparaging comments online about other employees, who make offensive posts about someone’s race, religion or national origin and any post that violates the company’s policies on employee behavior — even if the employee is posting while “off the clock.” In fact, even employees under contract can be fired for cause, as long as the contract has been drafted properly to reflect that. Adding a clause regarding social media posts can help avoid future contract disputes.

Navigating the business environment today can be increasingly tricky. Make sure that you fully understand what you can (and can’t) do to protect your brand.