It seems inevitable in today’s digital world that employers will sometimes discover that an employee has posted inappropriate statements or other inappropriate content on social media. The employer must then decide how to respond. Although the desired level of discipline will vary depending on the severity of the content, some statements are so egregious that they may call an employee’s character or fitness into question such that termination is the appropriate response. But if an employee is terminated for inappropriate conduct on social media, does the employer then open itself up to an additional risk of litigation?Although there is no easy black-or-white answer to this question, it is certainly one worth exploring. Some courts have recognized that inappropriate social media conduct can be a lawful basis to terminate. One frequently litigated type of employment law claim is the employment discrimination claim. In the cases, courts have indicated that conduct in violation of an employer’s social media policy can constitute a legitimate, nondiscriminatory reason for terminating an employee. (See, e.g., Redford v. KTBS, LLC, 135 F. Supp. 3d 549, 560 (W.D. La. 2015) (holding that terminating former employee for profanity on social media in violation of social media policy was a legitimate, nondiscriminatory reason for termination, although denying summary judgment to the employer on former employee’s race and sex discrimination claims for other reasons.)

As an example, in a currently ongoing case, Franklin Leal v. Sinclair Broadcasting Group, No. 1:16-cv-679, 2018 WL 61725256 (W.D. Tex. Nov. 26, 2018), a federal magistrate judge has recommended that the court grant an employer’s motion for summary judgment against a former employee’s Title VII, Americans with Disabilities Act, and Family Medical Leave Act claims where the employer argued that the former employee’s inappropriate statements on social media were the legitimate, nondiscriminatory reason for his termination. The employer terminated the former employee for threatening his station managers and calling them “cowards” on social media, which was also a violation of the employee’s employment agreement And the employer’s social media policy. Although this case is still ongoing, the magistrate judge’s recommendations indicate that inappropriate activity is a legitimate, nondiscriminatory reason that may be used as a defense against certain employment law claims.

Still, employers cannot forget that certain types of statements may nonetheless be protected under federal law. The National Labor Relations Act (NLRA) protects all employee statements on social media that relate to the terms and conditions of employment, such as compensation or working conditions. This protection can extend to complaints that may offend the employer, even some complaints directed at supervisors or management, although it typically does not include remarks with no bearing on working conditions that are intended solely to disparage the company or other employees. Thus, even where inappropriate conduct on social media may be a valid basis for termination under employment discrimination laws, employers must still be cautious to avoid running afoul of the NLRA.

Before terminating an employee for inappropriate conduct on social media, employers should at a minimum evaluate:

(1) the nature and severity of the conduct,

(2) whether the conduct is a violation of the employer’s social media policy,

(3) whether the conduct may violate any employment agreement or other policies, and

(4) whether the employee’s conduct may be protected under the NLRA.

Although the possibility of litigation cannot be avoided entirely, inappropriate social media conduct can be a strong justification for discipline or termination in employment law cases, particularly where the conduct is a clear violation of the employer’s written social media policy. Recent case law continues to emphasize the importance of implementing a proper social media policy that has been reviewed by counsel, as it may be more difficult to justify employee discipline without one. In instances of less severe conduct, employers should consider warnings or other discipline before termination to mitigate the risk of a lawsuit.