What Can You Do About an Employee’s Off-Duty Social Media Posts?

In light of the ongoing unrest over the death of George Floyd, many employees are taking to social media to post their support for, or frustration with, the ongoing demonstrations. Before responding to these actions, employers should take a moment to consider the critical legal implications that arise from employee activity on social media.

Freedom of Speech, Not Freedom from Consequences

At the outset, most people now recognize that private sector employees do not have a “free speech” right that allows them to post whatever they want on social media without repercussions. The First Amendment only protects against the government’s enactment of laws abridging free speech.

A few states (e.g. California) have enacted laws protecting employees from discrimination based on political affiliations and activities, and others (e.g. New York) prohibit employers from making job decisions based on an employee’s legal off-duty conduct.  Minnesota, however, does not regulate off-duty social media activity and therefore, employers in our state generally have the right to discipline or terminate their workers for expressing political opinions online.

#DontGetSued

Despite having wide latitude to take employment action against employees’ off-duty online activity, Minnesota employers must still be aware of a variety of legal pitfalls when doing so.

For example, disciplining employees for posting something critical of the Black Lives Matter movement or the ongoing #JusticeforGeorge protests, but not for other similar “political” postings might imply bias since those two movements are so closely aligned with issues of race.   Indeed, in a 2018 case from Indiana, a court ruled that an employee who had been fired after criticizing the Black Lives Matter movement online had alleged sufficient circumstances to raise an actionable claim of “reverse race discrimination.”

Online speech may also be protected under the National Labor Relations Act (“NLRA”), which applies to employees engaging in protected concerted activities relating to their terms and conditions of employment. Speech outside the workplace, including posts on social media, may be protected if it has a sufficient nexus to the workplace. For example, an employee simply posting support for the Black Lives Matter movement likely would not be protected under the NLRA. However, if that employee posts a statement along the lines of “my employer only promotes white employees, that’s why my coworkers and I support #BLM,” this statement may be protected. In fact, in an August 2018 Advice Memorandum, the National Labor Relations Board’s General Counsel reached a similar conclusion, finding that Latino employees who skipped work to attend a “Day Without Immigrants” rally were protected when the employees had previously complained of mistreatment to management and linked those complaints to the protest.

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Absent these specific protections, employees may be surprised to learn that while they may exercise a right of “free speech,” their employer may correspondingly exercise their right to impose consequences for such speech in the form of adverse job action based upon legitimate business concerns.

So, for example, if an employee tweets that “all protesters should be shot,” their employer may be justified in disciplining or terminating them. This is especially true if the employee’s posts negatively affect their coworkers, such as when a colleague complains to management about feeling unsafe or being specifically targeted by the posts, thereby implicating the company’s anti-harassment policy.

Discipline for off-duty posting may be especially justified if they are causing a negative impact on the employer’s public image. In the labor arbitration context, multiple arbitrators have found that posting racist or inappropriate things online constitutes “just cause” for discipline when the posts “had the potential to undermine the Employer’s relations with its clients and the community at large.”

Don’t Jump to Conclusions

Finally, it is imperative to conduct a thorough investigation before taking any action against an employee for allegedly engaging in inappropriate online conduct. For example, if an employer receives a “tip” about an employee posting something inappropriate online, the following basic steps should be taken before making a decision regarding what action, if any, to take.

  1. Confirm the existence of the post itself, and confirm that it was actually written by the employee in question. This is especially prudent with social media posts, which may be “faked,” or may not actually be posted by their listed author.
  2. Consider how the post came to the employer’s attention, for example, if complaints were received from coworkers or customers. This information could help establish the necessary nexus to the workplace, and could also establish a legitimate reason to take adverse employment action, for example, if members of the public are complaining about the employee’s comments, undermining the company’s relationship with customers.
  3. Confirm that the contents of the post are objectively inappropriate or offensive.
  4. Interview the employee in question in order to try and understand the context of their post. There could be an explanation to the post which may not be apparent if not viewed in the context of the entire “thread.”

Bottom Line

When determining whether to take action against an employee for their social media conduct, it is critical to consider the content of the posts and the nature of the company’s business on a case by case basis before making any employment decisions. Not only may firing an employee for posting an innocuous “#BLM” post reflect possible bias should the employee challenge their termination, the optics of taking such action may invite criticism from the public.

However, the opposite is true as well, not disciplining employees who post incendiary of “trolling” posts regarding the current political situation may invite the ire of the public for the employer’s lack of action.

As with all things in this arena, these are complex issues.