Q. One of our employees recently posted a picture of himself on Facebook doing something inappropriate while wearing a T-shirt with our company logo on it. The inappropriate conduct didn’t occur at a work event, but we’re concerned that the T-shirt connects us to the conduct. We would like to fire him immediately, but we hesitate because the termination is based on his personal Facebook page.
A. Whether or not you can terminate the employee depends on the nature of the conduct shown in the picture. If the conduct was something egregious or threatening, like something that was racially offensive or a threat of violence, it may be lawful to proceed with firing.
You’ll want to consider, though, whether the conduct is subject to any legal protections before you move forward.
For example, you can’t fire someone for exercising whistle-blower rights online or for exercisingrights, which can include criticizing an employer or online.
You’ll also want to consider how you learned of the photo. If the employee’s Facebook profile is open to the public, he may not have any privacy claims if you act on the photo. However, if his profile is restricted, you’ll want to be sure you accessed the photo properly and lawfully.