Employee Can Be Dismissed for Just Cause Due to Social Media Posts

Be Aware, The Company Cannot Impose What Must Be Shared On Social Media, But Can Use It To Prove A Dismissal For Just Cause When The Subject Is Associated With The Workplace

At the same time that the growing polarization of the internet has made access to social networks simple and practical, as everyone can access them using just a smartphone, it has also served as a warning about the way we position ourselves online. For example, if an employee tarnishes the image of a company, the higher-ups can quickly access images and statements of that person, and at that moment, a question may arise: “Can a person be fired because of their behavior online?”

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This simplification of access has allowed these new means of communication to expand rapidly, reaching the entire world and often assisting in various daily tasks. After all, with two or three clicks, we can locate an acquaintance living in Hiraizumi, a village in rural Japan, or any service we are seeking.

According to lawyer Leandro Francois, a labor law specialist, an employee’s behavior on social media should not serve as grounds for termination, but be careful, as this only applies to personal posts.

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“The way an employee behaves on social media does not concern their job. A termination where the behavior is not directly linked to a breach of trust could lead to unnecessary troubles for the employer,” says the lawyer.

However, in cases where the employee publicly exposes the company or acts in bad faith, it may characterize an action subject to dismissal, as commented by lawyer Leandro Francois. “If the employee’s behavior on social media directly relates to their employer, they may be dismissed for just cause due to a breach of trust. Moreover, this has been the prevalent understanding of Regional Labor Courts.”

Even Outside The Workplace, Social Media Posts Can Be Used In Favor Of The Company And Result In Dismissal For Just Cause

Even outside the workplace, an employee often continues to represent the company’s image, and even if their social media is for exclusive use, caution is necessary. For the labor law specialist, comments, posts, and shares can all lead to dismissal.

“Posts that tarnish the company’s image, photos shared that prove, for example, that the employee was not ill when they claimed to be, thus not having a justified absence. Pejorative posts, among others,” emphasizes lawyer Leandro Francois.

The lawyer also reminds that if the employee feels wronged by the dismissal, they may seek justice, but this does not guarantee a victory, as the judge will hear both sides and analyze all evidence, such as videos and screenshots from social media.

“If the company is sued for dismissing its employee for just cause, it may exert all efforts to prove that the just cause application is correct, being able to present any legal evidence, including screenshots as valid proof.”

Companies Can Promote Actions To Talk About Online Safety, But Can Never Specify What Can Or Cannot Be Posted On Their Employees’ Social Media.

When discussing this subject, it is common for people to think that the company must inform its employees about their conduct on social media, but be aware that this cannot and should not be done. Companies can promote actions to speak about online safety, but can never state what can or cannot be posted on their employees’ social media.

According to Leandro Francois, regarding the employee’s personal life, the company should not interfere or provide any material on this issue. “There is no need for the company to maintain a handbook informing its employees about what they should or should not post on social media, as this could be characterized as an abuse of the employer’s power, threatening employees who have free will in conducting their personal lives.”

In Dismissals For Just Cause, It Is Necessary For The Employer To Inform The Reason For Terminating The Employment Contract

It is true that the company cannot prevent an employee from posting, sharing or liking anything, but it is also true that it can use that person’s posts as a basis for dismissal since, if the posts relate to the job, the employee is in breach of Article 482 of the CLT. 

“The justification for applying just cause to an employee is included within the scope of Article 482 of the CLT. If, for instance, there is a breach of trust between the company and the employee, due to the employee posting a photo at a party while, for the company, they provided a medical certificate that led to their absence, they will be dismissed for just cause based on Article 482, section ‘b’, of the CLT,” states lawyer Leandro Francois.

The expert in labor law also reminds that any dismissal performed for just cause must be communicated to the employee, including the reason for the termination.

“In dismissals for just cause, it is necessary for the employer to inform the reason for ending the employment contract, as well as to clearly state the legal justification,” concludes the lawyer.

About Leandro Francois

Leandro Francois has been practicing in the field of Labor Law for four years. He is a specialist in Labor Law and Labor Processes from EBJur. He was a member of the OAB committee in Ribeirão Preto in 2019.