You never know what is going to go viral next. It could be a recipe, a dance trend, or a commentary on social events. However, if one of your employees is making waves on the internet, it can present unique challenges. More eyes on the creator can potentially mean more eyes on the employer, creating confusion as to whether your employee’s views reflect those of your organization. This is particularly true in today’s politically charged environment.
The first thing to consider is whether your organization is a public or private entity. The answer may affect both your options and your legal obligation.
For private employers, there are not always clear hard and fast rules dictating when to act in response to an employee’s social media posts. However, employers should be aware of several laws before making any decisions. The National Labor Relations Act (NLRA) protects private employees who engage in “concerted activities for the purposes of … mutual aid or protection” regardless of whether they are unionized. Protected activity can include topics such as wages, company benefits, and working conditions. If an employee believes they were terminated or disciplined due to speech protected by the NLRA under this act, they can bring a complaint to the National Labor Relations Board (NLRB), who will determine if it falls within protected concerted activity. This includes speech that was made online or in social media.
Private employers should also be cognizant of anti-discrimination and anti-retaliation laws when addressing an employee’s online comments. Most federal and state anti-discrimination laws contain anti-retaliation provisions, protecting employees from disciplinary action for reporting discrimination. If the online post discusses workplace treatment of a protected group (older employees, for example), the employee’s speech may constitute protected activity.
Aside from this, private employers do not have hard and fast rules to follow because the First Amendment does not apply to them. This means that private entities’ social media policies can be subjective, however that is not recommended. Private employers should set social media policies that offer clear guardrails for what types of social media posts are and are not considered acceptable. Employers should consider several key questions before taking action:
If the answer to most of these questions is no, disciplinary action may do more harm than good.
If you are a public entity, then the rules are more clearly defined. First, you must determine whether the employee was acting as a private citizen or as an employee when creating their post. Second, you must determine if they were speaking on a matter of public concern. This can be a fine line to walk.
In Marquardt v. Carlton, a federal court found that a Cleveland EMS employee’s social media posts stating that he was happy that Tamir Rice, a Cleveland teenager fatally shot by police, had been killed was not a matter of public concern because the post included words such as “I” and “me,” reflecting the employee’s personal views and not directly relating to the employee’s job. By contrast, in Liverman v. City of Petersburg, police officers’ social media posts that were critical of promotional practices within their office were found to address matters of public concern because it was related to matters arising from their employment and did not include personal pronouns.
If an employee is speaking as a private citizen on a matter of public concern, then the First Amendment likely protects that speech. While not absolute, the courts have to balance the employee’s right to free speech against your public organization’s operational concerns.
Another issue was addressed in both cases: the entities’ social media policies. In both cases, the courts found the employers’ policies to be too broad and therefore unconstitutional. In Marquardt, the court found that because the policy used words such as “harmful,” “negative,” and “inappropriate” without defining them, the policy was subjective in nature, and capable of restricting protected speech. Similarly, in Liverman, the policy stated a prohibition on “negative comments” without defining the term, the court determined made the policy was too broad and subjective. In both cases, the courts held that public entities’ social media policies be narrowly tailored in a way to keep them from being subjective and to offer clear guidelines for employees.
If you are dealing with an employee who is not shy about posting their thoughts about their job and are unsure how to proceed, contact one of Mansour Gavin’s Labor and Employment attorneys for a consultation.