Can They Fire You for That?

By Tracy Schorn

February 15, 2018

D.C. Bar CLE

One wrong tweet and you’re toast? In this brave new world of 24/7 social media broadcasting, employers have the ability to monitor their employee’s feeds—and may not like what they see. Consider the well-publicized case of Justine Sacco in 2013. Before boarding a flight to South Africa, she tweeted “Going to Africa. Hope I don’t get AIDS. Just kidding. I’m white!” By the time she landed, her tweet had gone viral, and she was fired.

In the face of an employee’s questionable private conduct, employers often ask their attorneys, “Can we fire an employee for doing that?” 

“In recent years, there has been an unbelievable number of employees who have lost their jobs, or been disciplined, for what they say on social media,” says Diane A. Seltzer Torre of the Seltzer Law Firm, who was the speaker at a CLE panel, "It Didn't Happen at Work: Can They Fire Me Anyway?" on Thursday, February 15. 

“The National Labor Relations Board has jumped all over these cases, claiming that employers often violated the National Labor Relations Act (NLRA) in taking action against these employees … and the cases have been making their way into the trial and appellate courts. The workplaces need not be unionized for the provision of the NLRA that deals with protected concerted activity for mutual aid or protection to apply, and many employers and employees do not realize that.”

Seltzer Torre says at this moment when the country is so politically divided—and vocal about those divisions—employees need to realize their off-duty conduct may have legal consequences in the workplace.

“Many employees understand they are ‘at will,’” says Seltzer Torre, “but they are often unaware that there are statutes and case law that protect their rights to engage in certain conduct outside the workplace, and these protections modify the ‘at will’ nature of their employment.”

On the flip side, however, “many employees do not realize that the First Amendment does not apply to private employers, so they actually are not always free to exercise their First Amendment rights without repercussions at work!”

The confusion over protected speech and conduct extends to employers as well. Seltzer Torre cites a case in which an employer may wonder if medical marijuana use is protected or whether they must continue to employ an employee who has very unpopular political views.

These were just a few of the issues discussed during this lively and spirited discussion on what employees and employers should expect regarding consequences at work for off-duty conduct. This course also addressed trending issues, including terminations based on the employee’s:

  • social media posts;

  • marijuana use;

  • political activity;

  • outside employment;

  • romantic relationships/socializing with coworkers; 

  • tobacco use;

  • support of LGBT rights, pro-choice or pro-life organizations, gun ownership, and other social causes and issues;

  • alcohol use; and

  • arrests (pending disposition).

Seltzer Torre was joined on the panel by Karen Doner of Doner Law, PLC, and David Warner of Centre Law & Consulting.