“Ask Sarah” Column

Dear Sarah,

One of our employees recently posted something political on their personal social media account. The post does not mention our organization, but it is getting attention, and now we are receiving complaints from employees and members of the public. Some people are demanding that we fire the employee. Others are saying we cannot do anything because of “free speech.” Can we discipline an employee for what they post online?

Signed,
Log Me Out Immediately

Dear Log Me Out,

Maybe! Employee social media issues are difficult because they usually arrive in chaotic ways: screenshots, angry emails, coworkers taking sides, and someone asking whether the organization has “seen this yet.” The goal is not to decide whether you personally agree with the post but whether the post creates a legally and operationally appropriate basis for employer action.

The first question is whether you are a public employer or a private employer. That distinction is important because the First Amendment limits government employers, but it does not restrict private employers. So, if you are a private employer, an employee usually does not have a constitutional right to post whatever they want online without workplace consequences. That does not mean private employers have unlimited freedom to discipline.

Other laws may still protect certain types of employee speech. For example, employees may have protection under the National Labor Relations Act when they discuss wages, hours, benefits, staffing, safety concerns, or other terms and conditions of employment, especially when they are acting with or on behalf of other employees. That protection can apply to conversations on social media and in a non-union workplace.
Employers should also be careful if the post in question involves discrimination, harassment, or retaliation. Employees who complain online about discrimination or harassment may be engaging in protected activity. On the other hand, if an employee uses social media to harass, threaten, or discriminate against a member of the public, the employer may have an obligation to investigate and take appropriate action.

For government employers, the First Amendment analysis adds another layer. Public employees do not lose all constitutional rights when they accept public employment, but those rights are balanced against the government employer’s need to effectively and efficiently provide public services. The key considerations are whether the employee spoke as a private citizen, whether the post involved a matter of public concern, and whether the employer’s operational interests justify discipline.

The employee’s role matters too. A post by a back-office employee on a personal account may present a different issue than a post by a department head, police officer, spokesperson, or an employee whose role depends heavily on public trust, safety, discipline, or close working relationships. The more closely the employee’s job is tied to public confidence, authority, safety, or the employer’s mission, the more important the operational impact may become.

Before disciplining, gather the facts. What exactly did the employee post? Was it public? Did they identify themselves as an employee? Did they use your organization’s logo, uniform, equipment, title, or email? Was the post made during work time? Did it mention coworkers, supervisors, clients, residents, students, patients, vendors, or the organization itself? Did it involve threats, harassment, discriminatory language, confidential information, or workplace complaints?

Next, look at your policies and past practice. A good social media policy can prohibit employees from speaking on behalf of the organization without authorization, misusing logos or resources, disclosing confidential information, engaging in harassment or threats, or violating workplace conduct rules online.

Consistency is also important. If one employee is disciplined for an inflammatory political post but similar posts from employees with different viewpoints are ignored, that can create risk. Focus on the conduct, the policy violation, and the workplace impact, not simply the political viewpoint. If discipline is appropriate, tailor it to the issue.

“Free speech” does not always mean “free from workplace consequences.” On the other hand, “we got complaints” does not automatically mean “fire them by lunch.” Gather the facts, apply your policies consistently, and make sure the response is based on the employee’s role, the post’s impact, and the law that applies to your workplace. And this is one of those areas where calling your employment counsel before you do anything is the right move. We can help apply these parameters to your workplace.

“Ask Sarah” is prepared by Sarah Glaser, Managing Director and Chair of the Firm’s Employment Law Practice Group. If you would like additional information, please contact Sarah at 512.322.5881 or sglaser@lglawfirm.com.