Can I Fire Someone for What They Posted on Social Media?
An employee posted something on their personal social media account. Maybe it was offensive. Maybe it disclosed something about your business they should not have shared. Maybe it was a photo from a work event that reflects poorly on the company. Now you’re wondering: can I fire them for this?
The answer is: it depends. And getting it wrong, by terminating someone for protected activity, is an expensive mistake. Here is what you need to know.
At-Will Employment Is Not a Blanket Answer
Most employers in most states operate under at-will employment, which means you can terminate an employee for any legal reason or no reason at all. The key word is legal. There are several categories of social media activity that are legally protected, and terminating someone for those posts creates serious liability.
Posts You Generally CAN Terminate For
Employees can typically be disciplined or terminated for social media posts that:
• Disclose confidential or proprietary company information
• Make false and defamatory statements about the company, its products, or its leadership
• Contain harassment, discrimination, or threats targeting colleagues, customers, or others
• Violate a clearly written social media policy the employee agreed to
• Represent the company without authorization in a way that causes reputational damage
• Contain explicit or offensive content that is not protected and violates workplace policies
In these cases, a well-written social media policy that the employee signed and acknowledged is your foundation. It defines what is prohibited, the employee agreed to it, and the termination is defensible.
Posts You Generally CANNOT Terminate For
This is where many employers get into trouble.
Concerted Activity Under the NLRA
The National Labor Relations Act protects employees’ rights to engage in “concerted activity”, like discussing wages, working conditions, workplace policies, and organizing activity with coworkers. This protection applies to virtually all private sector employees, whether or not they are in a union.
An employee who posts on Facebook complaining about their pay, criticizing management’s decisions, or discussing working conditions with coworkers is likely engaging in protected concerted activity. Terminating them for that post is an unfair labor practice.
The NLRB has actively pursued employers who terminated employees for social media posts that constituted protected concerted activity. The penalties include reinstatement and back pay. The same NLRA protections apply offline too. See our guide on what happens when an employee shares a coworker's salary for a common example of where employers get this wrong.
Other Protected Activity
You also cannot terminate an employee for social media posts that:
• Report illegal activity by the employer (whistleblower protections apply)
• Relate to a discrimination or harassment complaint they filed
• Discuss the employee’s own medical condition or disability
• Reference political activity or affiliation in states that protect off-duty political activity
The Gray Area: Personal Posts That Reflect Poorly on the Company
What about an employee who posts something personally offensive, like a racist joke, inflammatory political content, or something that embarrasses the company even though it does not mention the company by name?
This is genuinely complicated territory. The answer depends on whether the content is legally protected, whether it has a direct nexus to the workplace, whether it affected the employee’s ability to do their job or the company’s ability to conduct business, and what your state’s off-duty conduct laws say.
Some states have specific laws protecting employees from discipline for lawful off-duty conduct. California, Colorado, New York, and North Dakota are among the states with the broadest such protections. Before terminating someone for a personal post that does not directly involve your business, check your state’s off-duty conduct laws.
Before You Terminate: A Checklist
• Is the post protected under the NLRA? (Does it discuss wages, working conditions, or workplace issues with or for coworkers?)
• Is the post related to a complaint or protected activity?
• Does your state have off-duty conduct protections that apply?
• Do you have a written social media policy that addresses this type of content?
• Was the policy communicated to the employee and did they acknowledge it?
• Have you applied the policy consistently to other employees in similar situations?
If you have worked through this checklist and termination is the right call, see our guide on how to conduct a termination meeting to make sure the process itself is handled correctly. If you cannot answer all of these questions confidently, consult with HR or employment counsel before taking action.
The Practical Solution
The single best thing you can do to navigate social media situations is to have a clear, written social media policy in place before something happens. A policy that defines prohibited conduct, explicitly carves out NLRA-protected activity, and has been acknowledged by employees gives you a defensible framework. It also makes the disciplinary conversation much simpler: the employee agreed to these standards, and the post violated them.
Without a policy, you are making a judgment call with no documented standard to point to, which is exactly the situation you want to avoid when the call involves termination.
Get a Social Media Policy Template
Our template includes NLRA protected activity language, prohibited conduct definitions, authorized representative guidelines, and a signed acknowledgment block designed to protect your business without overreaching.
→ Social Media Policy Template — $35 | pragmatichrgroup.com
Editable Word document + PDF. Instant download. Created by a SHRM-SCP certified HR professional.
Questions about this or other HR topics? Visit pragmatichrgroup.com for more resources.
