Social media posts, even if done in the employee’s free time, and containing their personal opinions, are not automatically protected from possible employment consequences.
A recent Washington Post article reported on individuals in the U.S. losing their jobs over social media comments related to the assassination of conservative activist Charlie Kirk. How does this situation compare to New Zealand’s employment laws? Below is a comparison highlighting key similarities and differences.
In the U.S., dozens of individuals—including teachers, professors, pilots, and public servants—have faced suspension or dismissal for social media posts that mocked or celebrated the death of conservative activist Charlie Kirk. Employers cited reputational damage, violation of codes of conduct, and public backlash as reasons for disciplinary action.
While U.S. employers can terminate employees at will, could similar outcomes occur in New Zealand under comparable circumstances?
The answer is yes, but with some important differences in legal framework and cultural context.
In New Zealand, employers must have a valid reason for dismissal. The right to free speech is protected under the New Zealand Bill of Rights Act 1990, but it is not absolute in employment settings. Employers can take disciplinary action if an employee’s speech:
Misconduct outside of work can be grounds for dismissal. Employees can be dismissed for conduct outside of work—including social media posts—if there’s a clear link to their employment. Even if a post is made outside work hours and on personal devices it can still justify dismissal if it negatively affects the employment relationship. This includes:
Posts that identify the employer.
Posts that contradict the employer’s values or public role.
Posts that are offensive, discriminatory, or incite.
Public sector employees are expected to uphold integrity and neutrality, even on personal accounts. Posts that conflict with these expectations may result in disciplinary action. The considerations of offending actions will depend on the employees role, the nature of the post and whether it identifies the employer and the potential impact on reputation and trust.
Whilst employers must follow a fair and due process, they are legally supported in protecting their reputation, values and business interests.
For instance, a nurse was dismissed for posting anti-vaccination and anti-Muslim content on her private Facebook account.
The Employment Court upheld the dismissal, noting:
The posts were offensive and contrary to the employer’s values. They were sent to 86 friends and colleagues.
Even though the posts were private, they reached colleagues and could be screenshotted.
The content was deemed offensive and contrary to the employers’ values.
Her role involved caring for vulnerable patients making her views impactful.
The nurse’s role as a public-facing health professional increased the impact of her statements.
The dismissal was found to be justified. Notably the Court said “If the out of work conduct could negatively impact on the employer, for example by bringing it into disrepute, or if the conduct otherwise erodes the trust and confidence the employer has in the employee, the employee’s conduct can be the subject of disciplinary action.
“Social media posts, even if done in the employee’s free time, and containing their personal opinions, are not automatically protected from possible employment consequences.”
Where then is the line drawn between free speech and a sackable offence. Some examples that have been considered are.
Offensive or discriminatory content (e.g., racist, sexist, anti-religious remarks)
Violent or hateful language (e.g., celebrating someone's death)
Posts that undermine public health or safety (e.g., anti-vaccine misinformation by healthcare workers)
Posts that damage the employer’s reputation or breach a code of conduct.
Posts that identify the employer or link the employee to the organisation, especially in sensitive roles.
On the other hand, posts less likely to justify dismissal would be:
Mild personal opinions not linked to the employer.
Posts shared privately with no public visibility or impact.
Posts unrelated to the employee’s role or the employer’s business
Key Takeaways for NZ Employees and Employers
For Employees:
Think before you post especially about sensitive or controversial topics. Even private posts can have public consequences.
Know your employer’s policies. Social media guidelines are often part of your contract.
Avoid identifying your employer in personal opinion postings.
Understand your role. If you’re in a public-facing or sensitive position, your speech may be held to a higher standard.
Adjust privacy settings to control who can view your content.
Communicate respectfully and avoid inflammatory language.
For Employers:
Have a clear social media policy. Define acceptable conduct and consequences.
Assess context carefully. Consider the nature of the post, the employee’s role, and the impact on your organisation.
Act fairly and consistently. Ensure disciplinary processes are procedurally sound.
Provide education and training on responsible social media use.
