Prior to the age of social media, customers interacted with the employees only at the employer’s place of business or in other employer-sponsored activities or communications.  The public was generally unaware of which employees were connected to which employers. With the explosion of social media platforms and online presence, and with most people using multiple social media platforms and often using the same platform for business and personal purposes, employees are now publicly connected to their employers. In today’s world, many employers find themselves asking: what can be done when an employee’s social media presence, most often in the form of comments, photos, and tweets, is contrary to an employer’s values or those of its clientele? How does an employer determine when “private” conduct goes too far? Alternatively, at what point does an employee’s “work-life” end and “private life” begin? Do such distinctions exist in today’s world?

In December 2013, thirty-year-old Justine Sacco, a senior director of corporate communications, went on vacation to South Africa. While in transit, Sacco tweeted several times, poking fun at a German man with body odor in first-class and the “bad teeth” in London.  Then, as she departed on an eleven-hour flight, Sacco posted the (now) infamous tweet “Going to Africa. Hope I don’t get AIDS. Just Kidding. I’m white!” Sacco, by her own account, intended the tweet as a joke, much like her other tweets before. Sacco’s employer, and other Twitter users, did not share Sacco’s humor. Sacco’s employer terminated her upon landing in Africa.

Sacco’s tweet needs little debate to conclude it is, at best, evidence of poor judgment and, at worst, racist and insensitive to a medical crisis. However, most tweets are not such clear indications of poor judgment. Some tweets or other social media posts that may otherwise appear uncontroversial may be particularly harmful to a business, especially when shared by an employee of the company.

When determining whether to fire an employee for social media conduct, employers should carefully evaluate the conduct at issue and their primary motivation for disciplining or terminating an employee for the conduct. In most states, including Texas, employment is “at-will”, meaning an employee can be terminated for any lawful reason.  While “lawful reasons” are abundant, there are discrete categories of “unlawful reasons” for termination. An employee may not be terminated:

(1) for making truthful statements about working conditions,

(2) solely based on demographic information, such as race, sex, age, and/or religious affiliation,

(3) for comments indicating an intent to join a union,

(4) in retaliation for a protected activity, such as an employee’s reporting a safety violation, discrimination, or underpayment of wages,

(5) for whistleblowing, and

(6) for communications with co-workers encouraging them to find legal counsel to learn more about workplace rights.

Further, an employee is not considered to be “at-will” if their employment agreement states that the employee can only be terminated for “cause.” Absent these situations, an employer can terminate an employee for just about anything, including posts on social media.

Just because an employer can fire an employee for a tweet or other posts on social media, does that mean that they should? Employers should make sure that they have social media policies and should be careful to apply policies regarding the use of social media equally across all employees. For example, if an employer intends to monitor employees’ social media, or other online activities, it should implement a process that provides for a broad review of all employees, rather than a select few or those from within a particular department. Employers conducting such reviews should be transparent with their employees about their intentions and processes. Additionally, if an employer is considering terminating an employee for their social media conduct, it should also consider whether other employees would be terminated for the same or similar conduct.

Social media policies should be clear, easy to follow, and provided to all employees at the start of employment. This is especially important for employees who will have access to confidential or proprietary information about the company. Employees should be reminded about these policies and promptly informed of any updates or changes. Just like any other written policy, employees should be asked to sign a copy of the policy, acknowledging that they have received, read, and understood it. A copy of the signed policy should be maintained in the employee’s personnel file.

As with any termination or disciplinary action, employers should document the reasons for termination or discipline for the employee’s file. This information should be kept confidential and maintained separately from the employee’s main personnel file.

While it may not be possible for an employer to control an employee’s private life and conduct, an employer can be clear about their expectations for employees at the start of, and during, employment.  Hopefully, with clear policies and processes in hand, an employer will never be bombarded with an employee’s viral tweet that is harmful to the employer’s business.