Can You Get Fired for What You Post on Social Media?

Recent data revealed that 72% of Americans are active social media users. Today, many of us routinely engage and “socially connect” with others on Twitter, LinkedIn, Facebook, TikTok, and other online platforms.

Given that 85% of people in the U.S. use a smartphone, it’s no surprise that issues like social media and online privacy have permanently changed the American workforce as we know it.

Many employers have benefitted from increasingly digital marketing strategies, especially with the rise in employer-based platforms like LinkedIn Recruitment or Facebook Business. However, there are pros and cons regarding the impact of social media in the U.S. workplace.

While many employees view personal social media accounts as a means to express themselves, employers tend to see things differently. From the perspective of a business owner, one post can escalate into a lawsuit or PR disaster that erodes a company’s longstanding reputation.

Even if a boss disagrees with an employee’s online presence, there are various laws in place to protect the rights and privacy of American workers. Still, this doesn’t mean that employees can say whatever they want online without consequences in the workplace.

Can an employer lawfully terminate an employee over a social media post? To understand which laws pertain to employers and employees when it comes to online privacy, we must first understand the concept of wrongful termination in Tennessee.

What Constitutes Wrongful Termination in Tennessee?

Tennessee is an at-will employment state, meaning that a company or employer may terminate an employee at any time for any reason without incurring legal liability. Likewise, Tennessee workers are free to resign from their position at any time for any reason without the risk of adverse legal repercussions.

However, as is often the case in our legal system, there are some exceptions to this rule. First and foremost, it’s important to remember that federal law prohibits U.S. companies and employers from harassing or discriminating against employees.

Regardless of at-will employment, it’s illegal to harass or discriminate against any employee on the basis of race, religion, national origin, gender, disability, age, and sex (including sexual orientation, pregnancy, and gender identity). Employee discrimination can take the form of any behavior entailing one or more of these protected classes.

There are certain conditions in which it is unlawful for a Tennessee employer to terminate an employee “at will,” including:

• If an employee is called to military service (TN Code §8.33.101)
• If an employee is voting in an election (TN Code §2.1.106)
• If an employee is exercising their right of association (TN Code §50.1.201)
• On the basis of wage garnishment (TN Code §26.2.101-410)
• If an employee files a workers’ comp claim (TN Code §50.6.101-705)
• If an employee is called to jury duty (TN Code §22.4.108)

In the event that an employee is unlawfully fired by their employer, they can seek compensation in court by filing a wrongful termination claim.

Social Media Policies in the Workplace

Whether or not an employer can lawfully terminate an employee over a social media post depends on various factors.

To gain a better idea of whether your employee or constitutional rights were violated as the result of online activity, it may be beneficial to reflect on the following questions:

• Company Policies. What company policies, if any, regulate employees' online activity, personal accounts, and social media use?
• Relevance. Has the online conduct in question impaired or affected the employee’s performance in the workplace?
• Discrimination/Harassment. Was the online content or context derogatory or discriminatory in nature? Was it shared at the detriment of the company or fellow staff members?

Regardless of whether discriminatory behavior is exhibited in-person or online, the penalty is one and the same. While technology continues to evolve and expand, the principles of employment law remain largely unchanged, as workplace discrimination and harassment in any medium are prohibited under federal law.

Tennessee Employee Online Privacy Act of 2014

In 2014, Tennessee lawmakers passed the Employee Online Privacy Act of 2014 (S.B. 1808) with the intent of protecting employees’ online rights and privacy in the workplace. Under TN Code §50.1.1001-1004, it is illegal for employers to:

• Request or require an employee/applicant to disclose a password to an employee or personal online account;
• Compel an employee/applicant to include the employer in their list of contacts associated with a personal online account;
• Compel an employee/applicant to access a personal online account in the presence of the employer in a way that permits the employer to observe personal content in the employee’s account; and/or
• Fail to hire, retaliate against, or otherwise penalize an employee/applicant who declines to disclose any of the information named above.

The Online Privacy Act also specifies what Tennessee employers are lawfully permitted to do. According to state law, employers can:

• Request or require an employee to disclose a password to gain access to either a company electronic device or an employer-provided account or service;
• Discipline or discharge an employee for transferring company proprietary or confidential information or financial data to a personal online account without authorization;
• Conduct an investigation if 1) there is specific information on an employee’s personal online account regarding compliance with applicable laws, regulatory requirements, or prohibitions against work-related misconduct; or 2) if the employer has specific information regarding an unauthorized transfer of confidential company data to the personal account;
• Restrict or prohibit an employee’s access to certain websites while using a company-issued device;
• Monitor, review, access, or block digital data stored on a company-issued device;
• Comply with a duty to screen employees/applicants prior to hiring them or to retain employee communications under certain circumstances; or
• View, access, or use information about an employee/applicant that is either in a public domain or does not violate other conditions in this Act.

When Can Social Media Activity Result in Employee Termination?

Many people are mistaken in thinking that the First Amendment gives us the right to say anything we want, whenever we want. This is not the case.

The First Amendment specifically protects against government interference while exercising our American right to free speech. While our constitutional rights can prevent us from being arrested or charged with a crime for speaking our minds, these protections don’t necessarily apply in the workplace.

If Tennessee employers can fire an employee for any lawful reason, this begs the question: What social media activity qualifies as lawful justification for termination?

5 Social Media Posts That Can Get You Fired

Generally, employers can lawfully terminate employees who share or post inappropriate online content, such as:

1. Confidential or proprietary information. From sales to hospitality, confidential data exists in every industry. Companywide compliance is required to avoid potential lawsuits resulting from privacy violations, such as a breach of contract or sharing client information with an unauthorized party.
2. Misleading content regarding the employer. Sharing false or misleading information about the company can result in termination.
3. Content with racist connotations. From political preferences to our personal lives, each American is entitled to their own opinion. Still, an employee crosses a line when they express opinions in a way that fosters a hostile or discriminatory work environment, such as inappropriate commentary on a coworker’s national origin or race.
4. Offensive commentary on political or topical events. In the professional sphere, some opinions—especially those of a political nature—are better left unsaid. Again, while employees are entitled to personal opinions, employers are at liberty to terminate those whose political expressions violate company policies, harass or threaten other employees, defy anti-discrimination laws, damage the company’s reputation through defamation or other inappropriate conduct, or imply that the company holds the same values as the employee (for example, if an employee attends a march or protest in their company uniform).
5. Content depicting an illegal activity. While it may seem like common sense to avoid posting illicit content online, it isn’t uncommon. Employees should take care to avoid posting content that depicts illegal acts, such as underage drinking, illicit drug use, or nudity.

Our Firm Has Recovered Millions on Behalf of Our Clients

While Tennessee laws can seem relatively straightforward, there are many gray areas when it comes to understanding employee rights in the workplace.

If you suspect that you were wrongfully terminated or mistreated by an employer, it’s best to consult with a trusted employment law attorney, as they can examine the unique details of your case and determine the most effective legal strategy to employ on your behalf.

Since 1980, Donati Law, PLLC has provided reliable legal counsel to Tennessee workers in need. Unlike other firms, we navigate employment law disputes on a case-by-case basis to deliver the personalized care and undivided attention that our clients deserve.

With over 150 years of collective experience, our compassionate legal team is proud to provide strong legal advocacy for our clients throughout the Mid-South. Reach out to our office to learn how we can help with a wide range of employment law matters, from severance to wage and hour violations to overtime law.

Every Tennessee employee has the right to a safe and just workplace. Our firm can help fight for the compensation you deserve. Call (901) 209-5500 or contact us onlineto discuss your case with a skilled Memphis employment law attorney.