Employers Beware: Can You Legally Terminate an Employee for a Controversial Facebook Post?

January 24, 2019

In this era of social media, it has become quite common for employees to post information online about their personal lives, their political views, and information related to their jobs. Social networks have increasingly blurred the boundaries between employees’ personal and professional lives, as many employees follow their colleagues, and even supervisors or subordinates, on popular social media platforms such as Facebook and Twitter. As a result, employers can easily become aware of their co-workers’ off-duty lives and personal viewpoints, even if they do not intentionally seek this information.  Once aware of problematic postings, employers are inevitably confronted with a dilemma: can/should we fire the employee?

Most U.S. states (including Pennsylvania, New Jersey, New York, and Connecticut) are “at-will employment” states, where either the employee or the employer can terminate their relationship, for any reason—as long as that reason is not illegal under state or federal law, or in violation of a contract or collective bargaining agreement. There are many situations where employees can be lawfully fired for their social media activity. Posting trade secrets or confidential business information online can violate confidentiality agreements or employer policies and handbooks, and can therefore be grounds for termination. Employee harassment on social media, including sexual harassment, may also be grounds for dismissal.

However, it is not always a good idea to terminate an employee based on a social media post.  Employers and HR professionals should consider these situations on a case-by-case basis.  This is particularly important for government employers, who are required to respect the free speech rights of their employees, and generally cannot retaliate against employees for speaking out as citizens on matters of public concern.

On January 8, 2019, the Pennsylvania Supreme Court granted a petition for appeal in Carr v. PennDOT,[1] a case that pits a public employee’s interest in free speech against her employer’s interest in protecting its reputation.  Rachel Carr was a roadway technician for the Pennsylvania Department of Transportation (“DOT”) who was terminated from her job in June 2016, after making a Facebook post complaining about the “horrible school bus drivers” near her home in Erie, Pennsylvania.  After describing a recent encounter where she almost “t-boned” a school bus due to the bus driver’s unsafe maneuver, Ms. Carr ended her post by stating that she did not “give a flying [expletive] about those babies and I will gladly smash into a school bus.”

Prior to the appeal to the Supreme Court, the Commonwealth Court of Pennsylvania ruled in Ms. Carr’s favor, holding that the DOT’s generalized interest in the safety of the traveling public did not outweigh Ms. Carr’s specific interest in commenting on the bus driver’s unsafe driving.  The Commonwealth Court held that Ms. Carr’s comments touched on a matter of public concern—the safety of schoolchildren—even if the manner in which she expressed those concerns was “abhorrent.”  Thus, Ms. Carr’s post was entitled to the protection of the First Amendment, and her termination was subject to a balancing test between the “employee’s interest in engaging in free speech [and] the employer’s countervailing interests.”

It will be interesting to see whether the Pennsylvania Supreme Court agrees with the Commonwealth Court and upholds its ruling in Ms. Carr’s favor.  In the meantime, this case is a reminder that employers should educate employees about social media, and have an updated and legally-compliant social media policy.  In addition, while private employers are generally not subject to the restrictions of the First Amendment, there are a host of potential state and federal laws that could be implicated by firing an employee for off-duty social media use.  As previously covered by HR Legalist, employee social media posts can be protected under the National Labor Relations Act, which protects the rights of employees to engage in “concerted activities” (such as discussions aimed at improving the terms and conditions of their employment).  Employers should make sure that their social media policies properly balance their legitimate interests in ensuring a productive workplace with the legal rights of their employees.  When faced with the potentially challenging decision of whether to terminate an employee based on social media posts, employers should consult an attorney with experience in this area.

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions related to the social media policy in the employee handbook, please contact one of our attorneys.

[1] See R.L. Carr v. PennDOT, PA SCSC, 380 M.D. 2017 (Pa. Commw. Ct. June 12, 2018).