Employees can be terminated for offensive social media posts

February 4, 2023

Too many employees wrongly think they can’t be legally disciplined or terminated for posts they make on their personal social media accounts after hours.

Earlier this year, semiprofessional hockey team Peoria Rivermen released player Louie Rowe after he posted a series of tweets that it determined were anti-LGBTQ and homophobic.

Rowe began his Twitter rant after the Kalamazoo Wings, another semipro team, temporarily changed its logo to rainbow colors in celebration of Pride Night. Rowe initially responded to a comment by another person who criticized the logo. Rowe stated, “I knew the Kwings were soft, but I didn’t know they were gay, trans and soft,” and he added the laughing emoji.

The Wings responded to Rowe, “We’ll never stop celebrating the unique and diverse individuals that make the hockey community amazing.”

Rowe responded with a screenshot of a Google search of “mental illness flag” with a series of rainbow flags.

And so it began, with numerous back and forth comments to and from Rowe, and it continued to escalate; at one point, Rowe said, “Ya’ll went from gay to trans to pedos in 8 years … that’s what.”

In releasing Rowe, the owner of the hockey team reportedly said that the organization does not condone Rowe’s language or support his point of view or behavior, and that his views do not represent the beliefs of the team, partners, fans or the sport, nor do they represent the values of the organization.

Although some have defended Rowe’s right to free speech, private employers are not bound by the restrictions protecting free speech under the First Amendment. Rowe has a right to make vile comments without being prosecuted by the government, but private employers can rely upon their own values statements and policies in taking employment action against an employee who violates those expectations.

Many employees don’t realize that they can lose their jobs over statements made via social media and wrongly think they are protected.

Over the past several years, there have been unending examples of employees who have been terminated for statements made on social media, including one from a man who worked at a law firm and ranted about COVID-19 restrictions. His post was deemed to be a violent threat. In it, he said that he would show the business his “Glock 21 shooting range results. With Hornady hollow points. Pricey ammo, but worth it in this situation,” if anyone asked him to wear a mask or show his COVID-19 test results.

Social media users after seeing the post found out where the man worked and began sending the firm messages. The firm publicly terminated him in a post of its own.

Even employees who work for the government can be terminated for social media posts. According to federal law, although employees retain their First Amendment rights, their social media comments can still result in discipline or termination depending on certain factors, including whether the person is commenting on a matter of personal or public interest, whether the person is speaking as a citizen or an employee of the public sector employer and whether the interests of the government’s efficient operations outweigh the First Amendment speech of the employee.

For example, a federal court upheld the termination of a man working in the clerk’s office in Florida who posted disparaging statements about a Black state attorney, including a suggestion that the state attorney “should be tarred and feathered if not hung from a tree,” after an online debate about the state attorney’s decision to not seek the death penalty in a murder case.

The man was allegedly forced to resign; he then sued, claiming he had a First Amendment right to the speech. The court ruled in favor of the clerk’s office.

Employers should make sure that employees understand the risk of posting on social media, including if those posts conflict with an employer policy or its values.

Before posting, employees should make sure they are sober. Too often employees go on a social media rant while intoxicated. Then, they should consider this:

What’s in it for me?

What’s the worst that can happen if I post this?

When in doubt — don’t post it.

Think of your employer like an umpire. If a batter has two strikes, the batter needs to swing if the pitch is anything close to a strike. When posting, consider your employer is the umpire. If the post is anything close to a strike, don’t post it, because if your employer calls a strike – it’s a strike — and there isn’t much that an employee can do to fight it.