In the wake of recent events, many employees are posting on social media, with widely divergent views, often communicated with raw emotion. Responses to those views are just as charged. And, people who read those posts (including trollers on both sides) are making complaints to employers about the posts of their employees, often demanding that the employers take action.
If an employer decides to take action based on social media use, that action should align with applicable law, company polices, company culture, the severity of the offense, and decisions the employer will make in the future.
Federal, state and local laws govern whether an employer can take an employment action based on social media use, even when the use disrupts business. For example, some state and local laws specifically safeguard employees’ conduct (whether on-duty or off-duty) related to their political views. Others protect employees’ off-duty conduct, including social media use, requiring employers to link the conduct to the job before taking disciplinary action. While federal laws do not directly protect political affiliation or speech in the private employment context, anti-discrimination laws may be implicated when employee speech involves a protected characteristic (e.g., race, color, sex, religion, age, disability, veteran status, etc.), and federal law protects employees who engage in concerted activities to improve the terms and conditions of their employment.
Company policies may prohibit certain conduct and/or promise protection for political speech or off-duty conduct. Companies should honor their policies and apply them consistently. Now would be a good time to refresh relevant policies and training (social media, code of conduct, safety, etc.) and consider a reminder to employees about the importance of following the law and company policies with respect to communications inside and outside of work.
Each situation must be considered on its own facts and in light of the employer’s risk tolerance and cultural priorities. For example, action may be appropriate if a social media post promotes violence, is egregiously offensive, or targets a person’s or group’s protected characteristics (e.g., age, race, sex or ethnicity), but a post that civilly expresses one’s opinion on a loaded political issue (e.g., gun control, abortion, or immigration), even if different from the company’s views, might not warrant action. And, employers should consider the precedent they may be setting when they make a decision in an individual case, even when the action they want to take is not specifically prohibited by applicable law.
There are a wide variety of potential responses to these situations, depending on the circumstances. We can help businesses sort through the complications and find an appropriate course of action.
