Joshua C. Black
Can You Get Fired for that Instagram Post?
By: Joshua C. Black, Esq.
With the increasing popularity of social media, employees should be aware that once posted online, content can live there indefinitely. Private companies and employers can discipline – or even fire - an employee for what they post online. And, while the first amendment protects free speech, it does not mean you can say, or post, whatever you want online without suffering consequences at work.
In Arizona, most employees are employed on an "at-will" basis. This means that either the employer or employee can terminate the relationship for any legal reason (or no reason at all.) If employees are harming the reputation of a business with statements they make online or during their personal time, this could be a valid reason for an employer to terminate employment.
Many companies have standards that employees are required to abide by. In fact, some industries, like education or the medical field, operate under a written employment contract. These documents don't typically change the "at-will" nature of employment; however, they may clarify terms the parties have agreed to. This may include providing advanced notice before terminating the relationship or setting limitations on what a worker may do or say when speaking outside of work or on social media.
Government employees are an exception to the rule. They may have first amendment rights to their speech because their employer is a government agency. Therefore, the Constitution may apply to these employees differently than regular private sector employees.
An employee who plans to speak out about controversial issues, even when off duty, should review their employment contract or human resources hiring documents for any restrictions they may have agreed to prior to engaging in the controversial speech.
Whether you use Instagram, Twitter, Facebook or TikTok as your social media platform of choice, you should know that your posts could also prevent you from getting hired at a new company.
According to a survey from Career Builder, 7 in 10 employers review job candidates’ social media sites as part of the hiring process. Additionally, roughly 30% of survey respondents noted they had reprimanded or fired an employee based on inappropriate content they found online.
Employees can protect themselves from repercussions at work by self-filtering what they post on social media and by being thoughtful about whether their employer would have a problem being associated with the same activity or language. A company's image is one of its most valuable assets.
So, before you hit send on your next social media post, ask yourself, “Does this content . . .”
Have racist connotations or overtones?
Include misleading, defamatory or false information?
Demonstrate that you lied to your employer? (i.e., you called in sick then went out of town.)
Contain confidential or proprietary information?
Depict anything that could be deemed too sexual or racy?
Exemplify illegal activity?
If the answer to any of these questions if “yes,” you probably shouldn’t make the post.
The bottom line is, most employees can be fired or disciplined for social media posts and other behavior outside of work hours if a reasonable employer would deem those posts or activities harmful to the reputation or goodwill of the company.
If you feel you have been unfairly discriminated against at your place of employment, or would like to speak with an Arizona employment attorney regarding your experiences, contact the Law Office of Joshua Black, PLC, at (623) 738-2225.