Someone Wants Your Employee Fired. What (Not) to Do.

Recent violence and political discord have led to a marked increase in social media activity.

With that has come a new viral trend; let’s call it termination trolling. Influencers and activists have been amplifying social media posts calling for people to get fired based on their social commentary. One group claims to have located more than 50,000 posts that, in its view, should be grounds for employment termination.

A number of employers have publicly dismissed employees (either on their own or in response to public pressure) after becoming aware of their social media comments or posts. Given the volume of posts and efforts to get people fired based on their social media posts or other comments, employers should prepare to manage such demands.

What to Do if You Receive a Complaint?

We addressed this subject of managing controversial commentary in detail here. Employers that receive demands to fire someone on the basis of remarks or a social media post should pause and consider the following questions:

1. Who is complaining?
   • Is the complaint from a co-worker/colleague, a customer, an organization, or an unnamed anonymous source?
2. What is the nature of the complained-of content?
   • If it is offensive, how so?
   • Is it violent, graphic, or profane?
   • Is it counter to your (the employer’s) values?
   • Is it political?
3. What is the context of the offending content?
   • Was the commentary made in person or online?
   • If online, on which platform(s) is (or was) the content visible?
   • Was the content posted during work hours or via a work-related device?
   • Was the content re-posted? If so, by whom?
4. Did the employee tag or refer to the employer in any way? Relatedly, how senior is the employee? Are they sufficiently high up in the company so that it would be reasonable to believe that they are representing/expressing the company’s position?
5. What actions have been taken by the employer in similar circumstances, if any (e.g., reprimand, training, termination)?

Also remember these important points:

• The First Amendment does not – generally – apply to private employment.
• However, the National Labor Relations Act (NLRA) does apply to private employers – and not just those with unionized workforces. The NLRA protects speech that could be construed as “protected concerted activity,” e.g., bringing group complaints to the employer's attention or trying to induce group action.
• In most places in the U.S. (except Montana), the doctrine of at-will employment generally governs employment relationships not subject to a contract or a collectively bargained agreement. At-will employment means that both parties to an employment relationship can end that relationship at any time, for no reason, or for any reason that is not unlawful. Unlawful reasons include discrimination and retaliation.
• Some states – most notably California and Connecticut – expressly protect political speech and prohibit employment discrimination on the basis of such speech.
• Many states have laws protecting off-duty conduct, and in some states, such as New York, “off-duty conduct” includes lawful recreational activity. However, courts in some jurisdictions – including certain New York courts – make a distinction, protecting the act of posting to social media without extending that protection to the actual content that’s posted. This limits the extent to which some off-duty conduct laws insulate employees from consequences related to what they share online during private time.
• Other state or local laws, such as social media and privacy laws, may also apply.
• The “hot potato” of the moment will eventually cool, and a new one will inevitably take its place. It is very important to manage all controversies as even-handedly as possible; variations in employer responses to various issues can lead to discrimination claims.

An employer confronted with demands to fire someone for something they said or posted should proceed thoughtfully. While, in some cases, it may seem easiest to appease a complainant by letting a worker go—especially if the complaint has gained traction and public attention, there are circumstances in which an abruptly terminated worker will have viable claims of discrimination and/or retaliation, exposing the employer to potentially costly liability. In many cases, it would be wise to consult with counsel so as not to overlook the important considerations that arise from the prospect of any termination.

Be Prepared

In anticipation of a potential spike in complaints of this sort, now may be a good time to revisit handbooks and update relevant policies, including those around social media, professional conduct, discrimination and harassment, and violence. It could also be prudent to train the personnel that may find themselves in the position of handling such demands, so that they know what to do when that email or social media tag arrives.

Epstein Becker Green Staff Attorney Elizabeth A. Ledkovsky contributed to the preparation of this post.