Over the last twenty years, the popularity of social media has surged. People of all ages and backgrounds have embraced its use and made it a part of their daily routine. While social media offers numerous benefits, it has also created new challenges for employers. For those trying to determine whether to discipline an employee for their comments online, the analysis can quickly become a legal minefield.

First Amendment Protections for Public-Sector Employees

Public or government employers are bound by the First Amendment. Generally, if a public employee is speaking as a private citizen and not as part of their official duties, they are free to express views on matters of public concern. These matters include issues of social, political, or other interest that are important to the community at large. (Comments about matters of private concern—such as personal interests or grievances—are not protected by the First Amendment.) 

However, even speech on public issues may lose protection if it significantly disrupts the workplace, undermines authority, or damages working relationships. In such cases, the employer may be justified in taking disciplinary action if its interest in maintaining workplace efficiency outweighs the public employee’s right to free expression.

NLRA Protections for Private-Sector (Non-Supervisory) Employees

Private employers, on the other hand, are not bound by the First Amendment. This means they can generally discipline employees for online comments, regardless of whether those comments address public or private concerns. This is because most employees in the United States are employed “at-will,” meaning they can be terminated for any lawful reason, including comments made on social media. 

However, most private-sector, non-supervisory employees have some types of protected speech under the National Labor Relations Act (NLRA). Even if they are not unionized, the NLRA applies to most private-sector employees and grants them the right to engage in “concerted activities” related to wages, hours, and other terms and conditions of employment. This protection extends to speech made online. 

Speech is considered concerted if it involves two or more employees. A single employee may also engage in concerted activity if they are acting on behalf of other employees, trying to initiate group action, or preparing for group action. Examples include posting complaints about wages, hours, or safety conditions or rallying support for improved workplace policies. 

Treatment by a supervisor can also be the subject of protected concerted activity if the speech is made with or on behalf of others and is aimed at improving working conditions, rather than simply venting a personal grievance. For example, an employee posts on Facebook, “Our manager keeps ignoring our requests for air conditioning in the warehouse, and it’s becoming unsafe in this summer heat! We need to talk to HR or file a complaint.” This speech would be protected concerted activity because it aims to improve a working condition (safety) and seeks to initiate group action. On the other hand, if the same employee instead posted, “My manager is a total idiot. Can’t believe I have to deal with this clown every day,” this speech would not be protected. This is just a personal grievance or gripe, unrelated to working terms or conditions of employment.

Speech That is Not Protected Under Either Law

Despite the protections offered by the First Amendment and the NLRA, several categories of speech are never protected. For example, online comments that include true threats, fighting words, malicious or reckless defamation, or obscenity often fall outside legal protection. Likewise, speech that violates anti-harassment or anti-discrimination policies is not protected (e.g., derogatory remarks about race, gender, or religion). 

Under the NLRA, speech may also lose protection if it is egregiously offensive, knowingly and maliciously false, or publicly disparages the employer’s products or services without relating the complaints to any labor controversy.

Key Takeaways for Employers

While understanding the general scope of speech protections under the First Amendment and the NLRA is relatively straightforward, applying these principles to real-life situations is often nuanced and challenging. When in doubt, employers should consult legal counsel. A misstep could lead to costly litigation, reputational harm, or damage to workplace morale.

Employers can also reduce the likelihood of problematic online speech by implementing a clear, well-communicated social media policy. Such a policy should outline expectations for online conduct, define boundaries around workplace-related speech, and reinforce anti-harassment and anti-discrimination standards. When employees understand what is acceptable, they are less likely to post content that could lead to disciplinary action. Proactive communication and training can go a long way in preventing issues before they arise. 

To learn more about the most cutting-edge employment law topics, register for Barran Liebman’s Annual Employment, Labor, Benefits & Higher Education Seminar at barran.com. | Andrew Schpak & Missy Oakley