Immediately following the recent assassination of conservative activist Charlie Kirk, scores of people around the nation took to social media to express their feelings and political views. Since then, headlines have popped up announcing the suspension or termination of employees whose social media posts were of concern to their employers. The list includes school teachers, college professors, an EMT, a sports commentator, a newspaper columnist, airline employees, etc. Because most Americans actively use social media and often comment on sensitive national events, online posts can easily escalate into workplace issues.
What about the First Amendment?
When an employee’s public comment on social media leads to discipline, someone is bound to ask, “What about the employee’s right to free speech?”
Our right to free speech under the First Amendment is protected from government action that would censor or restrict our expression of personal opinions or beliefs. However, private sector employers are not bound by the First Amendment’s free speech protections (i.e., private-sector employees can be disciplined for expressing their beliefs). In addition, the right is not absolute, which we will discuss below.
What About Public Employers?
As explained above, the right to free speech: (1) applies only to public sector employees; and (2) is not unlimited. The First Amendment protects a public sector employee’s right to speak as a citizen on matters of public concern. Speaking as a citizen generally means speaking outside of official job duties and usually not at work. Speaking about a matter of public concern refers to political, social, or community issues (e.g., racial discrimination policies or government efficiency). An example of where the right may apply is where a teacher criticizes a school on social media about a policy affecting students. An example of where the right most likely won’t apply is where a city clerk posts on social media that the boss is lazy.
In addition, where social media posts contain language that could be considered hate speech, incite violence, or violate the organization’s Anti-Harassment policy, such comments are typically not protected by the First Amendment.
What Can Employers Do?
Before taking any adverse action against an employee for something they post online, employers should carefully evaluate several legal and practical considerations.
- Consider All Legal Protections
The Nation Labor Relations Act (NLRA) gives all employees (even those not associated with a union) the right to engage in concerted activities for the purpose of mutual aid or protection. Loosely translated, that means employees must be allowed to work together to better their workplace. That includes the freedom to openly discuss working conditions. Social media platforms can be a legitimate forum for such discussions among coworkers (e.g., wages, scheduling, discrimination). This means the NLRA could provide your employees with protection if the social media post relates, even indirectly, to the employee’s terms and conditions of employment.
Even though a social media post could be tied to a concerted activity, the employee may lose protection if the post is egregiously offensive (using demeaning slurs, calling for or condoning violence, using obscenities, etc.) or knowingly false.
Where social media conduct is not protected by the NRLA, it may be protected by a state law. Some states have passed Off-Duty Conduct Laws that could limit an employer’s ability to terminate an employee for an online post depending on the circumstances. Minnesota, Connecticut, Louisiana, South Carolina, and Wyoming, for example, have laws that protect off-duty political activity. California, New York, and Colorado have statutes protecting employees from retaliation for lawful off-duty conduct. In those states, expressing personal views online may be protected unless those views have a clear, material impact on the business.
- Consider the Impact on your Business
Before you discipline, be sure you can tie that discipline to a clear business reason, such as a violation of an established company policy or damage to the organization’s business or reputation. If the employee’s activities have impacted the business in this way, document everything before taking action. If the business has not been significantly impacted, discipline may not be legally justifiable.
- Consider Past Actions for Similar Conduct
Consider any precedents already set regarding similar situations. Be careful that your actions cannot reasonably be considered discriminatory or retaliatory if you have allowed other employees to get away with similar comments or activities in the past.
Where Do We Go From Here?
- Make sure your policies are clear, reasonable, and compliant. That includes policies addressing harassment, discrimination, social media use, a dress code, and a general code of conduct.
- Train supervisors and managers to consistently and neutrally enforce your policies.
- Document all disciplinary actions, regardless of the reason.
If you are an employer with questions about social media use or any HR issue, contact our Risk Management Division by phone at 855-873-0374 or by email at . We will be happy to help!
Disclaimer: This information is for informational purposes only and not for the purpose of providing legal advice. This article does not create an attorney-client relationship between Keystone’s Risk Management Division and the reader.