Politics, Protests and Posts What Employers Can (and Can’t) Do About Employee Speech in a Polarized Climate By Fisher Phillips As political tensions surge and employee expression spills into every corner of the modern workplace, employers are finding themselves caught in the crossfire. From off-hours protests to heated workplace debates and viral social media posts, the question for us isn’t just whether speech is free, but whether it’s job‑protected. With laws, rights and risks swirling around every conversation, t-shirt, post and “like,” it’s time for a clear-eyed guide. Here’s what your business needs to know about navigating employee speech in various scenarios, both on and off the clock. SCENARIO 1: AN OFF-DUTY RANT GOES VIRAL An employee posts a politically charged rant on their personal social media account over the weekend. It’s not about work, but it causes public backlash. Legal Analysis Private-sector employers are not bound by the First Amendment’s free speech protections, which only restrict government action. That said, employers may not be able to discipline off-duty speech with total impunity. Several states — including California, New York and Colorado — have statutes protecting employees from retaliation for lawful off-duty conduct. Minnesota, Connecticut, Louisiana, 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 at issue, the federal National Labor Relations Act (NLRA) could also provide your employees with protection. If the social media post relates, even indirectly, to the employee’s terms and conditions of employment, it may qualify as protected “concerted activity.” This is especially true if the post touches on workplace issues shared by coworkers (e.g., wages, scheduling, discrimination). Under recent interpretations, the National Labor Relations Board (NLRB) has cast a wide net over what counts as protected speech, and this protection applies to non-union workplaces as well. Employer Guidance • Check local laws first. Understand whether your state limits employer action on off-duty political or personal speech. These laws may surprise you, as some prevent employers from terminating the employment of someone who posts even clearly offensive posts unless you can show the communication caused direct business harm. • Evaluate the workplace impact. Determine whether the post caused operational disruption, reputational damage or significant internal strife. Without the previously stated, discipline may not be legally or strategically justifiable. • Enforce policies neutrally. Whether the post supports or opposes a cause, the focus should be on the impact, not the ideology. Selective enforcement invites discrimination claims. • Document the decision-making. If you discipline, ensure documentation ties the action to the legitimate workplace impact you considered. Avoid using inflammatory or subjective language. • Consult legal counsel. These decisions often exist in legal gray areas, and public scrutiny can escalate quickly. Getting a second opinion can help de-risk the response. 18 SAN DIEGO DEALER
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