Fact check: What are the laws protecting employees from being fired over social media posts in the United States?

1. Summary of the results

The laws protecting employees from being fired over social media posts in the United States are complex and vary from state to state ^[1]. Private employers generally have the law on their side when it comes to terminating an employee for social media posts that may cause reputational damage or customer backlash, as stated by legal experts such as Marjorie Mesidor and Andrew Kragie ^[2]. However, some states have enacted laws that protect employees from being fired for certain types of social media posts, including 27 states with laws that apply to employers and 16 states with laws that apply to educational institutions ^[1]. Employers must balance business interests with employee rights, taking into account the National Labor Relations Act (NLRA) and state social media privacy laws when drafting social media policies ^[3]. The National Labor Relations Board (NLRB) also protects employees' rights to engage in 'protected concerted activity' on social media, including discussing work-related issues and sharing information about pay, benefits, and working conditions ^[4].

2. Missing context/alternative viewpoints

A key point to consider is that most employees are at-will, meaning that employers can fire them at any time for any reason or no reason, as stated by employment law attorney Victoria Kepes ^[5]. However, critics argue that terminating employees for social media posts threatens free speech and employee protections, with law professor Steven Collis stating that the right to free speech under the US Constitution does not cover private employers ^[6]. Additionally, recent enactments of social media privacy legislation in states such as Delaware and Maine highlight the importance of employers ensuring compliance with applicable social media privacy laws ^[7]. Over 20 states have enacted legislation regarding employer access to employee social media accounts, with laws varying from state to state ^[8]. Furthermore, the NLRB's approach under the Biden administration has shifted towards a more pro-union agenda, which may impact employer handbook rules, including social media policies ^[9].

3. Potential misinformation/bias in the original statement

The original statement may be misleading in implying that there are federal laws that universally protect employees from being fired over social media posts, when in fact, the laws vary from state to state ^[1]. Private employers and their legal representatives may benefit from this framing, as it reinforces their ability to terminate employees for social media posts that may harm their business ^[2]. On the other hand, employee advocacy groups and unions may argue that this framing threatens free speech and employee protections, and that stronger laws are needed to protect employees from unfair termination ^[6]. Employers who fail to comply with applicable social media privacy laws may also face legal consequences, highlighting the need for careful consideration of these laws when drafting social media policies ^[7].