Updated: Feb 24
Actual question from a blue state employer: One of our employees has posted inflammatory remarks on social media, supporting Kyle Rittenhouse and insulting our governor, who opposed the verdict. Is there anything we can do?
Response: For employees who enjoy sharing on public social media – i.e., most employees – there is always a risk that a boss or co-worker will find something they disagree with. And be offended.
As I have discussed previously, employees are normally at-will and can be fired for any reason, unless the reason is discriminatory. And only some states consider political activity worthy of protection from discrimination.
You may ask, don’t employees have free speech rights? At RedBalloon, we encourage employers to respect the free speech of their workers. Nonetheless, the First Amendment protects Americans from government action only. It does not protect workers from actions by private employees. There is no independent, legal right to free speech in the workplace.
However, just because an employer can fire someone, does not mean they should. As a matter of wisdom, employers should be slow to discipline workers for social media activity. Here are some questions to ask first:
Was the post made during work time? Social media activity that interferes with work is fair game for discipline, regardless of content.
Does the post violate Company policy? If the post violates important Company policies, including disclosure of confidential information, misuse of the Company’s trademark, or harassment of co-workers, you may need to discipline the employee.
Does the post mention the Company in a negative way? It can be distressing to see employees rant about your company online. However, the National Labor Relations Board has taken the position that employees have the right to address work-related concerns and share information with co-workers online – even when those concerns take the form of complaining. Intentionally false information, or disparagement not related to the working environment, can and should be addressed with your employee.
Does the post mention the company in a positive way? You may appreciate employees who give glowing reviews of company products and services. But there are pitfalls here as well. The Federal Trade Commission has endorsement guidelines to prevent misleading ads. Your employees could be inadvertently violating those guidelines. Here is a good principle to share with your employees: “If you discuss company products or services online, please be truthful; disclose your employment relationship; and make clear that any opinions you express are your own, not those of the Company.”
Do you really want to spend your time policing employee social media? Discipline should be consistent. If you crack down on one employee, while ignoring similar posts by other employees, you could be accused of favoritism or even discrimination. This is where Free Speech Employers save time and reduce risk, by just not worrying what employees say online.
May we see peace on earth, and also on social media,
Laura, the Labor Lawyer
Please note that this post does not constitute legal advice on your specific situation, and you do not have an attorney-client relationship with Laura. If you have questions for Laura, please send to email@example.com. Such questions may be used for general edification in this column.