Can employers fire workers for ‘offensive’ social media posts?


(WJHL)- Nationwide protesting and rioting over the death of George Floyd has millions of people sounding off their thoughts on social media. But if you post something potentially offensive on your personal account, does your employer have the right to fire you?

Over the past week, News Channel 11 has received several comments from viewers on Facebook, asking about First Amendment and free speech rights. This is in response to stories of employees being fired over comments they made on personal social media accounts.

On Monday, a Washington County Sheriff’s Office deputy was fired after posting a Facebook comment about the Minneapolis riots. According to the department, Deputy Matt Casura wrote ‘open fire should have been issued on anyone participating.’

On Wednesday, an ETSU spokesperson confirmed an employee is on leave after posting a graphic stating, “All lives splatter” on social media. The employee clarified their comment in another post, saying they did not condone running over protesters. But on Thursday, ETSU confirmed the matter is still under review.

Some News Channel 11 viewers asked, ‘What happened to freedom of speech?’

Constitutional scholar and Lincoln Memorial University law professor Stewart Harris confirmed employers can generally fire workers over posts they make on personal social media accounts.

“The First Amendment does protect our right to free speech,” said Harris. “But it only protects us against the government. If there’s a private employer involved and a private employee, there is no First Amendment protection. So the only question would become a matter of labor law, under which employers are generally allowed to fire people for just about any reason.”

Harris said government-funded institutions can also fire employees for social media comments they deem inappropriate.

“Like most employers, a university or a sheriff’s office has the right to discipline its employees for inappropriate behavior. And that can very well include misbehavior online outside of the office context,” said Harris.

Harris says it is typically within an employer’s right to fire workers who make threats.

“The idea there, is if a deputy sheriff is threatening Black Lives Matter, for example, then there’s a legitimate question as to whether that deputy sheriff can uphold his or her oath to protect every member of the community,” he said.

While employers may be able to terminate employees for posts deemed inappropriate, what is actually inappropriate, or could be considered a threat, is still subjective.

“Free speech is nothing but gray areas and that’s one of the inherent problems here,” said Harris. “I might post something that I think is funny and that I don’t intend to make any reference in race to. But others may perceive it in a very different fashion.”

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