News of several firings based on an employee’s social media post discussing recent events has rekindled the question of whether a private employer can terminate an employee for their social media activity.  While the answer will depend on the specific facts of each situation, private employers in California have more discretion when making termination decisions in this context than employees (or even the employers themselves) might expect.

California is known for leading the nation in establishing legal safeguards for its employees. As a result, it can sometimes come as a surprise to remember that California is still an at-will state, meaning either the employer or the employee may terminate the employment relationship at any time, for any lawful reason.  The catch, of course, is that this broad discretion does not give employers the right to terminate an employee for an unlawful reason.  As it relates to the recent high-profile terminations, many mistakenly assume that prefacing a termination on the contents of an employee’s social media post would violate the employee’s First Amendment right to freedom of speech and therefore necessarily be unlawful.  The First Amendment, however, does not apply to private employers, meaning that an employer’s decision to terminate an employee based on the contents of a social media post will not automatically be unlawful.  That is particularly true if the social media post is made during work hours, suggests that the individual is making the post in their capacity as an employee of the company, or suggests that the company endorses the post.

That being said, there are still several Federal and California laws that could impact an employer’s discretion to terminate an employee based on the contents of a social media post.  For example, under the National Labor Relations Act, an employee cannot be terminated for protected concerted activity, which includes activities relating to improving working conditions, pay, or other terms of employment.  A social media post discussing these issues likely could not be used as valid grounds for terminating an employee. 

Similarly, under California law, an employee cannot be terminated for engaging in lawful activities, politics, political action, or political activity on the employee’s own time. The Labor Code is very clear that an employer does not have the right to forbid or prevent an employee from engaging or participating in politics when the employee is either not at work or on a break.  Examples of protected political activity include attending a lawful protest, volunteering at the polls, or canvassing for a particular candidate.  Thus, a social media post expressing a political opinion or mentioning participation in a protected political activity (or encouraging lawful participation in a protected political activity) may be entitled to legal protection and would therefore not be valid grounds for termination.

On the other hand, a social media post which is unlawful, or which violates lawful company policies, would not be protected, even if political in nature.  For example, a post which involves harassment or discrimination of persons in protected categories under California’s Fair Employment and Housing Act would not be protected, nor would threats of violence, hate crimes, or a post that discloses the employer’s confidential information or trade secrets.  California employers are also free to address social media posts that attempt to speak on behalf of the employer or which are made in the employee’s work capacity without authorization.              Considering recent statements from government officials, as well as increasing pressure from organizations intent on punishing individuals for their social media activity, many private employers are opting to exercise their full discretion to terminate employees based on their social media activity.  California employers should be careful, though, and make sure to do their due diligence before making that determination.  First and foremost, employers should never demand that employees provide access to their social media, as such a demand is explicitly prohibited under the Labor Code.  If, however, an employer becomes aware of an employee’s social media post that the employer finds questionable, the employer should take the time to review the post, preferably with legal counsel, to determine whether termination is in fact the proper course of action.