A common misconception is that the First Amendment gives private-sector employees an unrestricted right to say whatever they want online without workplace consequences. Generally, constitutional free speech protections restrict government action rather than decisions made by private employers. That does not mean private employers have unlimited authority, however.
To that end, social media use can blur the boundary between employees’ personal lives and the workplace. When a worker posts something controversial, offensive or damaging to the company’s reputation, employers may wonder whether they can require a post to be removed or impose discipline.
Employers can take action, sometimes but not always
Federal, state and local laws can protect certain employee speech. For example, the National Labor Relations Act may protect employees who use social media to discuss wages, schedules, workplace safety or other terms and conditions of employment with coworkers. Employers can create legal problems if a social media policy is so broad that workers could reasonably interpret it as restricting protected concerted activity.
Other laws may protect off-duty conduct, political activity, whistleblowing or complaints about discrimination and harassment, depending on the jurisdiction and circumstances at issue. Employers should therefore avoid assuming that an offensive or inconvenient post automatically provides lawful grounds for discipline.
At the same time, businesses have legitimate interests to protect. Employers may be able to address online activity involving disclosure of confidential information, unlawful harassment, threats, misuse of company accounts or conduct that violates appropriately drafted workplace policies, for starters.
Before responding to controversial employee speech, companies should generally consider both what was said and whether the law protects the circumstances surrounding it. An experienced employment legal team can help employers protect their organizations without unnecessarily interfering with workers’ legally protected rights or exposing their companies to liability.