TikTokers, Tokers and Terminations: The Brave New World of Regulating Employee Conduct and Expression

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.

Workplace Expression of Political or Social Beliefs

These days, employers may want to regulate employee workplace expressions of political and social beliefs due to potential impacts on productivity, civility and customer relations. Just as in the social media context, public employers’ ability to regulate workplace expression and discipline employees is limited by the First Amendment.

While private employers are not governed by the First Amendment, some state and local laws protect employees from adverse employment actions for their social or political expression. Federal agencies such as the NLRB and Equal Employment Opportunity Commission enforce laws prohibiting discrimination for certain content and forms of political and social expression. In the NLRB context, the question is whether the expression raises concerns about working conditions or impacts on the workplace. If so, a policy banning employees from expressing such messages while on work time can interfere with, restrain or coerce employees in the exercise of their rights under Section 7.

Some expressions also may be found to be harassing and subject to prohibition on that basis. For example, the EEOC has taken the position, and several courts have agreed, that displaying the Confederate flag is a form of unlawful racial harassment, and an employer’s failure to timely stop an employee from displaying it at work may constitute harassment. Also, Title VII and similar statutes prohibit discrimination based on membership or association with members in protected categories but do not necessarily protect association with a social cause.

Off-Duty Marijuana Use

Employee on-duty marijuana use is an easy road to cross, but off-duty marijuana use is an increasingly difficult map to navigate. Currently, federal law still prohibits possession and use of marijuana, even though most states have legalized medical use of marijuana and some jurisdictions have legalized marijuana for recreational use.

On the federal side, the Americans with Disabilities Act does not protect marijuana use —medical or recreational—and does not provide employees with a right to accommodations in connection with marijuana use. In the state law environment, an increasing number of states, including New Jersey, Nevada and New Mexico, provide legislative protection to employees who engage in off-duty marijuana use. Further, some states have passed laws requiring employers to reasonably accommodate medical marijuana users. As a result of varying state and federal laws, what may be protected medical marijuana use in one jurisdiction may find no protection in another.

In this brave new world, employers should regularly review federal, state and local law and case updates to ensure they follow the recommended practices for responding to social media usage, workplace expression and off-duty conduct.