Can You Fire an Employee Based on a Friend’s Facebook Posts?


Well, it depends.

Here is the genesis of this article.

An employee is fired because of racist comments made by his Facebook “friends.”

Earlier this month, a Fox affiliate in Atlanta reported, a local man lost his job after his employer learned about a conversation he had with friends on his Facebook page. It began when the employee, who is white, posted to his Facebook page a picture he had taken of his black co-worker’s 3-year-old son. After he posted the photo, his Facebook friends commented on his post with derogatory and racist comments about the little boy. Gawker has NSFW (not safe for work) screenshots here.

According to the Gawker article, the employee made one comment—calling the little boy
“feral”—which he insists he did not intend as racist. But, more importantly—at least for purposes of this article—it does not appear that the employee did anything to discourage his Facebook friends’ behavior (such as deleting offensive comments, reprimanding his friends or otherwise discouraging people from commenting on the picture).

The employer eventually learned of the offensive comments and terminated the employee. (Although the Gawker article indicates that he may have been fired earlier for reasons unrelated to Facebook). Either way, the company subsequently issued a statement in which it denounced the employee’s decision to post the photo and the offensive comments that ensued.

Was it legal for the company to fire the employee?


Assuming that the man who posted the picture was an at-will employee, then, with limited exceptions, he can be fired for any reason or no reason at all. (Similarly, he was free to resign at any time). Thus, regardless of whether he was fired for his Facebook post, his friends’ comments or another reason altogether, what the company did was probably legal.

Does that mean that you can or should fire an employee for something one of his Facebook friends posts?

First note that “can” and “should” are two different matters. Let’s start with the former.

Can you fire him? It depends. If the employee has an employment agreement, defer to the agreement. Otherwise, it could come down to the substance of the comments and the identities of the Facebook friends. For example, the National Labor Relations Act (NLRA) may apply. The act applies in most private workplace settings (regardless of whether you have a union). It allows employees to discuss workplace conditions such as wages or how much they like (or dislike) their supervisors, without fear of repercussion.

To be clear, the NLRA would not apply in the situation described above. However, if instead of posting a picture of a co-worker’s child, the Atlanta employee had posted a picture of the office, and co-workers subsequently commented critically about the employer, then the company could not lawfully fire the employee for his post.

But, let’s take the NLRA out of the equation. Should you fire him?


But avoid taking a knee-jerk approach. Instead, consider the following prophylactic steps:

Get the employee’s side of the story.

Ask the employee if he or she has seen the comments from the friends. (Given that Facebook users can choose to receive notifications when friends comment on their posts, you should be skeptical if the employee claims not to have known about the comments).

Did the employee “like” the offensive comments? Yes, I realize that a Facebook “like” isn’t necessarily an endorsement. But, it may reflect poor judgment.

Consider the substance of the conversation. Are we talking about hate speech? Drug references? Or is it a heated conversation about a sports rivalry that went a little too far and included some profanity? In which case, we’re all human, and counseling may be sufficient.

Find out what steps, if any, the employee took to address the situation. While a Facebook user can take some preventive steps to deter offensive comments on his or her page, a perfect firewall is expecting too much. So, consider whether the employee responded promptly and reasonably.

Ultimately, as the person tasked with addressing this sort of social media activity, try to remain objective, reasonable and consistent. Imagine what would happen if the Facebook comments (and the company’s response) were reported above the fold on the front page of the local newspaper. Or, worse yet, became another viral story on social media.

I originally authored this article for the Society for Human Resource Management. It is reprinted here with permission from SHRM. You can find the original article here.

Image Credit: o5com on Flickr.
  • Another important consideration with respect to the picture/post in this case is that it was of a coworker’s child, and the comments could be interpreted as harmful and harassing to the coworker. The comments are objectionable in any circumstance, but that adds another relevant dimension from the employer perspective.

  • Motley Blogger

    Ah, for the days when “employment at will” still existed and meant something. Back then, you could fire someone for just being a dumb-ass, especially if his dumb-ass’ery outside of work had a negative impact on the employer. Besides, you gotta’ figure that someone with really poor judgement outside work is likely to have really poor judgment at work, too. I also long for the days when character counted, and poor character, no matter where it was exhibited, was a filter in the hiring and retention process and not a disability that protects the aforementioned dumb-ass from getting fired. Most of all, I lament the fact that we can no longer fire people just because we think they need firing. We are forced to accommodate the bottom-dwelling 20% at the expense of the 80% who behave and do their jobs as expected. In hindsight, does termination always turn out to be the right decision? No, but the vast majority of the time it is the correct decision. As for those rare times when we pull the trigger and should not have, hey, it’s not the death penalty. In virtually all cases, both the employer and the terminated employee get a do-over, and both are usually better off.