*Special thanks to Porter Wright summer law clerk, Grace Brown, for her assistance with this post.

It’s the summer of 2020, and someone from your company posts to her public Facebook page saying, “If Black people truly wanted equality, then they wouldn’t be isolating themselves into a separate group with Black Lives Matter. All lives matter!”

Your social media marketing team discovers the employee’s post after it was shared by someone who accuses that employee, and your company, of being racist.

What do you do?

This was a question Porter Wright lawyer Sarah Squillante posed during the firm’s Employment Relations Seminar on June 7, 2022. As more people around the world engage with social media and use it as a place to communicate with one another and publicize their beliefs, companies increasingly are faced with situations like these. It is important for employers to know how and when to deal with such employee social media posts.

How can employee use of social media affect the workplace?

hands holding cell phone and posting to social media representing free speech

Employers seldom are inclined to concern themselves with employees’ off-duty behavior — but social media use may be one exception. Social platforms have become the new way to connect with both old and new friends, including fellow employees, and it has the power to connect the public with your company’s mission or brand. Yet, there are risks — both legal and non-legal — associated with employee use of social media.

Legal and practical risks

Employers sometimes face legal risks created by employee social media posts. For example, employee posts about co-workers could violate the employer’s policies prohibiting harassment. Depending on the message, the employer may have the right and even a duty to put a stop to the conduct. Practical risks created by employee social media posts about the workplace or coworkers include possible damage to employee relations, employee morale, employee productivity and work quality, and impact on the employer’s public image or customer relationships.

What laws should employers consider?

Employers generally can terminate at-will employees for any lawful reason, including offensive conduct or statements. Employers also have a legal obligation to protect employees from conduct that creates a hostile work environment.

Off-duty conduct, like social media use, also can be protected under the National Labor Relations Act (NLRA). Section 7 of the NLRA guarantees the right of employees to form or join labor organizations and engage in concerted activity — any action taken by an employee to better their working conditions or pay. These protections apply to unionized and non-unionized employees. A social media post that raises complaints or concerns about the workplace might be protected concerted activity.

What should public-sector employers consider?

Public sector employers should remember that social media use may be protected under the First Amendment. When considering this issue, courts tend to weigh two factors: 1) whether the employee’s conduct is a matter of public concern, and 2) whether the employee’s interest in commenting on areas of public concern outweighs the employer’s interest in promoting efficiency.

It is also important for public sector employers to follow their own policies, any applicable collective bargaining agreements (CBAs) and applicable statutory obligations. CBAs and civil service rules usually specify grounds for discipline or termination and use “just cause” as the standard.

When should employers take action over social media speech?  

Employers typically can take action when conduct:

  • violates the employer’s policies.
  • is derogatory, harassing or defamatory.
  • is likely to cause unrest of disruption in the workplace.
  • shares confidential information.
  • is not protected activity under Section 7.

Even when employers can take action, it doesn’t always mean they should. Consider the following:

  • Is the conduct egregious or just annoying?
  • Has this conduct gone unaddressed in the past?
  • Is this the employee’s first offense, or is it in line with a pattern of behavior?
  • Will addressing the problem create additional ones?
  • Does addressing the conduct create more (as opposed to less) risk?

As Sarah put it during her presentation, social media is the new water cooler. In the end, employers have the right to take action in the face of employee social media use — under the right circumstances.