I Personal Posts, PROFESSIONAL PROBLEMS PRIVATE EMPLOYERS’ RIGHTS TO DISCIPLINE EMPLOYEE ONLINE ACTIVITY BY JOEY K. WRIGHT, AMUNDSEN DAVIS LLC HUMAN RESOURCES In the Age of Information, a constant barrage of social media moments, viral posts, TikToks and the like has become an unescapable part of society. Each new current event is likely to result in online discourse that permeates into every area of our day-to-day lives. To some, these posts seem personal and private, but an employee’s online activity can quickly extend into the workplace. For banks and other financial institutions where reputation, regulatory compliance and public trust are paramount, a single employee post can do serious damage to an institution’s bottom line. But how far can a private employer in the financial sector go in disciplining an employee for something they posted on their personal page? The answer depends on the content of the post, the applicable laws and how the institution responds. The First Amendment Does Not Apply to Private Employers When employers seek to address employee personal, off-the-clock online activities, employees will often argue that their “free speech rights” are being violated. While this is a very common misconception, the First Amendment limits government actions, not those of private employers. Essentially, First Amendment protections are not absolute, and private entities are not prevented from setting their own rules related to speech. A private company can generally take action if an employee posts offensive, discriminatory or disparaging comments that conflict with the organization’s values, even if the post was made outside of work hours. For example, if a loan officer at a regional bank posts inflammatory political comments on a personal Facebook page and identifies herself as a bank employee in her profile, the bank can generally discipline her if the post damages the bank’s reputation or violates its code of conduct. There’s no constitutional shield in the private employment context. Reputational Harm Is a Serious Risk in the Financial Industry Financial institutions rely on public confidence. Even off-duty conduct can undermine that trust. Consider this real-world scenario: A customer service representative at a bank publicly posts a TikTok video mocking a customer’s financial habits. Even without naming the individual, the video references the branch location. The post goes viral, drawing local media attention. While this was done on personal time, on a private account, the bank can discipline the employee for breaching confidentiality and damaging the institution’s reputation. Social Media Policies Are Foundational Institutions should have clear, consistently enforced social media and code of conduct policies that identify the institution as a private employer and clearly define expectations for off-duty conduct. Common policy prohibitions include: ▶ disclosing confidential or customer information; ▶ making discriminatory, harassing or defamatory statements; ▶ using the institution’s name or logo inappropriately; 20 HOOSIERBANKER
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