Employers Can Address Employee Speech Made Outside of Work
November 15, 2023
ASE has advised on this in the past but with the current state of social media use and the growing rancor and divisiveness in society we remind employers again: employers do have rights when it comes to its employees’ off-work verbal and social media communications.
First, the constitutionally protected right to free speech does not extend to private employers and their employees. The First Amendment right to free speech applies if the government attempts to restrict speech, not speech between private parties – generally.
There are some employee speech protections in the workplace. One is under the National Labor Relations Act. This protection applies when the speech is about terms and conditions of employment and with other employees. This protection could extend to talking trash about an employer. According to the National Labor Relations Board, it could even protect racial or sexual epithets if said in the context of protected concerted activity. The Equal Employment Opportunity Commission (EEOC) has a different position about that, but that is still being worked out and will be addressed in a separate article.
Another employment area where speech may be protected is where the employee is engaged in “whistleblowing”. Whistleblowing occurs when the employee reports employer activities that could be unlawful. Tracy Levy at Levi Employment Law states this would also include “retaliation for reporting or speaking out against harassment or discrimination based upon certain protected characteristics.”
So, when and where can employers act upon speech that they consider wrong and possibly harmful? Certainly, in the workplace, but what about outside the workplace? Of course, we are talking about social media, but this could extend to employees exercising their right to engage in a protest march.
Employees often work under the false impression that if they post speech on their Facebook page or other social media site it is their private conversation. Of course, this is far from the truth. Many employees have posted speech that is considered racially, sexually, ethnically, or religiously offensive and this speech has found its way back to the employer. Employers deeming the posted speech as offensive or worse have acted against the employee through discipline or terminating their employment.
Two recent cases demonstrate employers do have the right to discipline or discharge employees that the employer determined violated their social media policy or even broke the law. In McVey v. Atlanticare Medical System (2022) a New Jersey Court held an employer acted lawfully when it fired an employee posting racially insensitive comments about the Black Lives Matter movement. Specifically, the Court held that neither the First Amendment nor the state’s constitution protected the employee from the employer’s decision to terminate their employment based upon this speech. In another recent case, the federal Second Circuit Appeals Court dismissed an appeal by an employee that made a false police report based upon alleged racial grounds. This was a high-profile case involving a woman calling the police on an African American man while walking her dog in New York’s Central Park. She called the police to report an “African American man” was threatening her and her dog. Turns out the man was a bird watcher that complained to her she should put her dog on a leash, as required by ordinance. This was seen as a white woman making a false police report on a black man. This action cost her her job, and the Court upheld this termination of employment.
Both incidents took place outside of work, but they made their way back to the employer by way of social media.
Employers may choose not to hire or can terminate an employee whose speech does not line up with the mission or values of the organization or is a violation of its social media policy.
So today, employers can address antisemitic, anti-Muslim, or Arab rhetoric communications on grounds that it violates their policies against such speech.
But employers must be careful about how they come by such information. For several years now Michigan has had a law that prohibits employers from accessing employees’ private passwords to their social media, emails, and other personal internet accounts. So that door is shut. This prohibition does not apply if the device is paid for, or the accounts are provided by, the employer for business purposes. It also allows investigations by employers into abuse of their accounts on devices they pay for or own.
What are some examples of employer social media and speech restrictions? One example is below:
SOCIAL NETWORKING AND CONDUCT AWAY FROM THE COMPANY
While you are working for ABC Company, regardless of whether you are on duty or off duty, you represent ABC Company to the public, and therefore the whole company is being evaluated by your conduct. Our business depends upon public confidence and favor, and we hope you realize that bringing discredit to yourself affects you directly and bringing discredit to our company ultimately affects you and your employment opportunities indirectly.
This includes your conduct on the internet – including your use of social networking websites – even when you are not at work. Consider the privacy and dignity of your coworkers and how your statements will affect your relationships with them and how they will affect the Company. Remember, statements made about your coworkers online can be construed as discrimination, harassment, or retaliation, and the Company will not tolerate such activity in accord with applicable laws. Please conduct yourselves at all times in accord with our Policy Prohibiting Discrimination, Harassment, and Retaliation.
The Company’s social networking policy is not to be construed to prohibit employees from engaging in protected activity. If you have any questions about this policy, please contact your supervisor.
Any conduct that adversely affects an employee’s job performance or the performance of fellow employees, or otherwise adversely affects the Company’s legitimate business interests, may result in disciplinary action, up to and including termination. Similarly, inappropriate postings, including but not limited to discriminatory remarks, harassment, and threats of violence, or similar inappropriate or unlawful conduct, will not be tolerated and may result in disciplinary action, up to and including termination. However, this restriction will not apply to any postings made in the exercise of any rights granted to an employee by law.
If confronted with a situation where an employee’s off-work speech may have crossed that line, employers are advised to:
- Focus the company policy on actions taken in any form of social media or actions that could become public that would bring disrepute or embarrassment to the company. But know that it is tough to develop a policy broad enough to cover the wide variety of offensive off-duty behaviors but also specific enough to give fair warning to employees.
- Remind employees they have a responsibility to preserve the company’s reputation.
- Provide examples where employee comments caused great embarrassment to other organizations.
- If an incident occurs be sure to properly investigate it.
- Check state law before implementing a policy. Some state laws protect employee off-duty conduct.
Sources: Lexology Can an Employer Fire Me for My Speech Outside of Work? Levy Employment Law LLC (11/5/2023); CCH HR Answers Now. Expert Guidance “Off-duty Conduct Policies”
By Michael Burns, courtesy of SBAM-approved partner, ASE.