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Can You Fire an Employee for Tweeting Something Offensive?
In general, a San Diego business can fire an employee for tweeting something offensive, although there are some precautions if you are dealing with an employee under contract. A good corporate lawyer can help. Here are a few thoughts.
San Diego Corporate Law: At-Will Employees vs. Employees With Contracts
Most employees are at-will, which means that they can be fired for cause or no cause. In the case of an employee who tweets out an offensive tweet, the at-will employment doctrine allows an employer to fire the employee. It may be best to simply terminate the employee without going into detail about the offensiveness of the tweet; providing a reason — any reason — is an invitation to argue and litigate about the reason.
However, with an employee may be hired under a contract that takes the employee out of the category of at-will. If not at-will, the contract should list reasons for which the employee may be fired. As such, it is necessary and important to review the employment agreement first to determine if the employee can be fired for an offensive tweet. In addition, the employment contract may list various procedures such as warnings and progressive discipline. In the latter case, the contract may require that the employee be suspended for the first offensive tweet, etc.
On the other hand, most well-drafted employment contracts have provisions that allow for immediate termination for actions/behavior that are detrimental to the business. Thus, if the employee is high-profile enough and the tweet is offensive enough to injure the reputation of the business, then an immediate firing may be justified and allowable under the contract. We wrote recently about morality clauses in employment contracts. See here. Given the prevalence and increasing popularity of online platforms like Twitter.com, it may be important to incorporate such morality provisions in your employment contracts. A good contract can help avoid litigation.
San Diego Corporate Law: Other Factors to Consider
Aside from whether the employee is at-will or under contract, there are many other considerations that will impact the decision of whether to fire an employee for an offensive tweet. These include:
- Use of a company twitter account is unquestionably grounds for termination
- Tweet sent from work, during working hours, or was sent on the employee’s own time
- Nature of the “offensiveness” — some tweets are more offensive than others
- Does the tweet violate company anti-harassment and anti-discrimination policies?
- Is employee collective action/unionizing activity involved?
- Does the company have social media use policy? It is probably useful to implement such policies; see here and here and here
- Nature of your business — a consumer-focused business is more justified in policing Twitter statements
- Independent contractors vs. employee — depending on the contractor agreement, it may actually be easier to terminate a contractor than an employee
- Impact on employee morale — this can go both ways; firing an employee might cause a loss of morale or might increase morale if the “bad employee” got what was “deserved”
- What is in your employee handbook? — A good employee handbook can help avoid litigation; see here
Contact San Diego Corporate Law Today
If you would like more information, contact attorney Michael Leonard, Esq., of San Diego Corporate Law. Mr. Leonard has extensive experience in drafting employee policies, employee handbooks, employment contracts, and the other contracts and agreements necessary for running your business. Mr. Leonard can be reached at (858) 483-9200 or via email.
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