Employees Posting Personal Opinions on Social Media What Can Employers Act Upon By NFDA As more employees use social media as major communication tools, employers must know what they can and can’t do when it comes to disciplining or even terminating employees for their social media use. Employees going to social media to share their personal opinions on topics such as the assassination of Charlie Kirk has some employers wondering where the “line” is and how they can respond to protect the good name and reputation of their company. Whether employees post, comment or otherwise engage in social media activity, employers can generally act on such conduct as they would if it occurred in the workplace. But several protections may be available to an employee facing discipline for their postings. These include laws prohibiting harassment and violence, and laws protecting whistleblowers and employees who complain about workplace conditions. Legal Considerations • Private-sector and most non-profit employers are not bound by the First Amendment’s free speech protections, which only restrict government action. • Several states — including California, Colorado and New York — have statutes protecting employees from retaliation for lawful off-duty conduct. In addition, Connecticut, Louisiana, Minnesota, South Carolina and Wyoming are among the states that specifically protect off-duty political activity. These laws may prevent employers from firing or disciplining employees for expressing their personal views, unless those views have a clear, material impact on the business. • Even without a directed state law, the federal National Labor Relations Act (NLRA) could also provide your employees with protection. If the social media use relates, even indirectly, to the employee’s terms and conditions of employment, it may qualify as protected “concerted activity.” This is especially true if a post touches on workplace issues shared by coworkers (e.g., wages, benefits and working conditions as defined by the NLRA). SESCO’s Guidance on Employers’ Social Media Policy What Not To Include • Prohibitions on Work-Related Discussions: Employees have a legal right to discuss jobs, wages, working conditions and other employment issues. • Restrictions on Social Connections: Avoid language that limits employees from following or connecting with coworkers online. 8 | Directors Digest
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