In today’s digital age, employees are increasingly active on social media, sharing opinions that can sometimes impact their employer’s reputation. For business leaders - whether a restaurant, a retail store or a manufacturer - understanding your rights and responsibilities when employees post controversial content is essential.

The Scenario
Imagine one of your employees, Jane, an active user of social media, posts several discriminatory comments about a religious group on social media. She recommends against hiring them and labels this religious group as terrorists. It is also clear from Jane’s posts and profile that she is employed by your company.

You feel these posts are appalling, and you are concerned about their impact on your company’s brand and customers’ trust. 

The situation raises two questions:

• Does Jane have a right to free speech under the First Amendment? 
• Can you terminate Jane for her posts? 

Understanding the Law
The answers to these questions are “No,” and “It depends.”

First Amendment
In regard to the first question, the First Amendment applies to government agencies and does not apply to the private sector. Private sector employees do not have the same protections as public sector employees. Jane’s conduct is not governed by the First Amendment.   

However, the answer to the second question is more complicated.   

The National Labor Relations Act (NLRA)
The NLRA protects employee communications that concern the workplace. Employees are allowed to vent and complain about their supervisors or their employer, or about work-related issues, whether to each other or on social media. 

However, the line between work-related speech and non-work-related speech can be gray. 

Case Study: Home Depot and Protected Speech
Last year, the NLRB ruled against Home Depot in a case involving its New Brighton, Minnesota store. Shortly after George Floyd’s killing, Antonio Morales began wearing a hand-drawn Black Lives Matter (BLM) marking on his orange Home Depot apron. During this time period, there were several racially related incidents at the store. Morales was told by the Home Depot he could not work unless he removed this marking. He resigned, alleging race discrimination. 

Morales filed a charge with the National Labor Relations Board alleging he was terminated because he engaged in protected concerted activity. The NLRB agreed, holding that the BLM insignia was an outgrowth of prior employee complaints about racial discrimination at Home Depot. The BLM marks on the Home Depot apron constituted protected concerted activity. Therefore, the NLRB concluded that Home Depot unlawfully constructively discharged Morales by conditioning his return to work on removing the BLM markings from his apron.

Applying the Law to Social Media Posts
Why is this case relevant to an employer’s right to discipline Jane because of her social media posts supporting discrimination against a religious group? How do Jane’s discriminatory posts relate to the workplace? 

The answer lies in what else is going on at your company and whether this conduct can be considered related to the workplace. Private employers can prohibit speech at work and away from work that is discriminatory, threatens violence or otherwise violates company policies.  However, in most cases, an employer cannot prohibit speech that discusses work-related issues.

Questions Employers Should Ask
As you consider whether to terminate an employee for social media posts, you should ask yourself several questions:

• Business Impact: How do the posts affect your business? Are you receiving complaints from customers? As a customer-driven business, you have the right to protect your brand and the product or service you sell. Are the posts disrupting your business?
• Employee Relations: Are you receiving complaints from other employees about the posts?  Are the posts causing divisiveness in the workplace and adversely affecting morale?
• Safety: Are the posts threatening or promoting violence?
• Policy Violations: Do the posts violate any of your company’s policies?
• Union/Legal Protections: If your employees are represented by a labor union, does the collective bargaining agreement contain any limitations on your right to discipline or terminate an employee, or contain provisions that protect posts on social media?

Best Practices for Employers

1. Consult Legal Counsel: You should consult with legal counsel regarding laws or ordinances that prohibit discipline for social posts. Laws vary by state, and some protect employees from discipline for political activity or lawful conduct outside of work. In Minnesota, employers are prohibited from economic reprisals, threats of loss of employment or physical coercion because of the employee’s political activity.  Other states such as California and New York, have laws that prohibit retaliation for lawful conduct that occurs outside of work.
2. Consider Alternatives: Before terminating, consider speaking with your employee about the impact of their posts. Ask if they are willing to remove or clarify them. Sometimes, actions short of termination can resolve the issue and reduce the negative impact of the posts and reassure your customers and your employees.
3. Ensure Consistency: Treat the employee posting as you would any other employee in similar circumstances to avoid claims of discriminatory treatment. Although you may not have experienced these exact circumstances with other employees, the company may have disciplined other employees for conduct that adversely affects morale or impacts the business.
    

Training and Policy Recommendations
There are many actions your company can take to train employees:

1. Explain that the First Amendment does not apply to private workplaces.
2. Talk to employees about the mission of your company and the effect that their social media posts can have on your company’s business, so that they understand that they should carefully consider how their posts can affect your business.
3. Consider adopting a social media policy that prohibits employees from posting threats of violence or harassment or any language that violates company policies.
4. Request employees focus on respect and inclusivity in their posts.

It is to be expected that the tensions in our country will spill over into the workplace. Employers should be cautious yet deliberative in addressing social media posts that can affect business, customers or employees. By understanding the law, asking the right questions and fostering a respectful workplace, you can protect your brand without violating the law.