The exploding use of social media can sometimes put employers and employees at odds. Employers must decide how to respond when employees express political and social opinions in the workplace, in conversation or through apparel. Other outside-of-work activities, including lawful drug use, increasingly have employment implications as well.
Controversial Postings on Social Media
A discussion of employee social media posts often begins in the way most discussions of individual speech seem to start—with the First Amendment to the United States Constitution. Generally speaking, the Constitution allows individuals to express themselves without government interference or regulation (with some caveats).
In the employment setting, it is important to distinguish between public and private employers. Public employers such as federal, state and local governments can regulate employee speech, but only when necessary to carry out their public functions effectively and efficiently. Private employers are not subject to First Amendment limitations and have broader latitude to discipline employees for social media posts, especially those that violate policies, disclose confidential or trade secret information, or harass others. However, employers must follow various federal laws when regulating speech, creating and enforcing rules, and carrying out adverse actions.
Both public and private employers can monitor employee use of communications technology that the employer owns but typically cannot access an employee’s personal device unless the employee is using company resources on it. In addition, some states have “right to privacy” laws that prohibit requests to gain access to an employee’s social media accounts; other states have laws prohibiting adverse actions against employees for engaging in certain conduct outside of the workplace.
Under Section 7 of the National Labor Relations Act, a private employer cannot restrict employee social media use to discuss the terms and conditions of employment for “mutual aid or protection.” The National Labor Relations Board has issued guidance that employer social media policies should not be so sweeping as to prohibit this protected activity, such as discussing wages or other terms and conditions of employment. However, employee social media posts and comments are generally not protected if they are “mere gripes.” A private employer should evaluate any facially neutral employer social media rules by balancing the nature and extent of a rule’s potential impact on Section 7 activity from a reasonable employee’s perspective against the employer’s legitimate justifications for maintaining the rule. Discipline pursuant to an unlawfully overbroad social media rule is unlawful if an employee violates the rule by engaging in either protected concerted activity or activity that—while not concerted—touches concerns implicated in Section 7.