Two things are eminently clear as the 2020 election season ramps up: (1) Everyone has an opinion, and (2) they aren’t shy about sharing it.
So, what’s an employer to do when an employee likes or shares an inflammatory article on Facebook or uses his 280 characters on Twitter to start a battle with a local government candidate? Is the employee’s speech protected? Does the National Labor Relations Act (NLRA) apply? Here are a few considerations.
First Amendment
Generally, a private company can discipline an employee for a problematic social media post without issue because the First Amendment applies only to government action. Union negotiations may limit the employer’s freedom, however, if a collective bargaining agreement prohibits the company from firing an employee because of online activity.
National Labor Relations Act
While politically oriented social media posting isn’t likely to fall under the NLRA, employers should remain conscious of how the Act could limit their policy’s enforceability if the speech they’re seeking to prevent is related to the terms and conditions of employment.
Under the NLRA, you can’t prevent employees from discussing things such as pay, benefits, or working conditions if their actions could be construed as “protected concerted” activity. So, an individual employee’s tweet griping about the bad day she had at work likely isn’t protected, but a Facebook group comprised of current employees sharing complaints about their supervisors may be covered.
State Employee Privacy Laws
Some states have legislated on employers’ ability to control employees’ social media postings. Nebraska, for example, prohibits an employer from:
- Requiring or asking applicants or employees to provide their social media log-in information;
- Mandating or asking applicants or employees to log in to their accounts in the employer’s presence;
- Forcing applicants or employees to add any contact to their network, including the employer; or
- Taking adverse action against an applicant or employee related to the above items.
Fifteen other states have social media statutes applying to employers.
Lawful Activities Statutes
A handful of states have passed laws protecting employees from discipline for engaging in any lawful activity outside of work. Although the laws are most commonly applied to marijuana use or an employee’s criminal history, the broad language has been used to provide protection for a worker’s social media activity. So, be sure to stay up-to-date with your state’s legislation on the issue.
Social Media Policy
Employer social media policies have been a hot-button topic for several years as the popularity of sites such as Facebook, Twitter, and Instagram have grown exponentially. Some companies have a strict no-personal-use policy while employees are on the clock or using company property, while others encourage workers to be active—but act responsibly—on social media.
No matter what the company’s policy is, there does seem to be a common thread: When employees (on or off the clock) post something to any social media outlet, they should either:
- Make no reference to the company in any capacity; or
- If they do reference the company, make it clear the post is strictly their own personal view and doesn’t necessarily reflect the company’s thoughts on the topic.
Encourage employees to exercise good judgment in what they post, whether it be company-related or personal, and remind them never to post anything that could be construed as racist or defamatory. Make sure they understand you’ll hold them responsible if they violate the company’s social media policy.
Beth Roesler is the managing partner of the Goosmann Law Firm office in Sioux Falls, South Dakota. You can reach her at RoeslerB@goosmannlaw.com.