In recent months, there has been an uptick in inquiries from employers about their employees’ social media posts, posing the question “how do employers determine when employees’ online speech has gone too far and warrants the employers’ intervention”.
In addition, many employers are being made aware of their employees’ online speech via complaints from community members, customers and/or clients who are able to make the connection between the employee and their organization based on the employee’s social media profile. This has left many employers wondering if employees have the right to say whatever they want on their private social media pages or whether the employer has the right to step in and address these issues.
It is true that employers may not be able to police everything employees do outside of work; however, once someone complains to an employer or calls attention to an employee’s off-duty comments or actions, it becomes the employer’s concern.
How to best address issues related to online speech will require employers to do an analysis to determine if the posts may be considered offensive, harassing, discriminatory or in conflict with the employer’s core values. This typically leads to questions from employers asking, “What about New York’s lawful off-duty conduct law, freedom of speech, and protected concerted activity under the National Labor Relations Act (NLRA)?” Great questions! Each of these laws could have an impact on the action that an employer may take against an employee for their online speech.
NY LAWFUL OFF-DUTY CONDUCT LAW
New York’s lawful off-duty conduct law prohibits private employers from discriminating against employees based on their lawful off-duty conduct, such as political activities, use of consumable products, recreational activities and membership in a union. But there are exceptions. While it can be argued that online speech on social media would be considered lawful off-duty conduct, it should be noted that an employee is not automatically protected against employer action simply because they alleged the post was made off-duty. Online speech that attacks immutable characteristics protected by law such as age, race, sex or religion, or which constitutes workplace harassment, would most likely not be protected under this law.
Employers should also consider whether the online speech is directly tied to an employee’s political affiliation. Expressions of racism or other harassment are not political speech. Employers should seek guidance from legal counsel to ensure an employee’s actions do not fall within the scope of lawful off-duty conduct.
FREEDOM OF SPEECH
The First Amendment protects the right to free speech, but how this law relates to the workplace is often misunderstood by employers and employees. The First Amendment was designed to prevent government from suppressing or enacting laws which limit an individual’s right to free speech; however, this law does not apply to private employers. Despite this fact, employers must be aware that social media posts may be protected by other labor laws, such as the National Labor and Relations Act (NLRA).
NATIONAL LABOR AND RELATIONS ACT
The NLRA prohibits employers from making rules which limit an employee’s right to discuss working conditions, wages and benefits with other employees. While employers can ban the use of social media on company time, they cannot have blanket policies that stop employees from discussing work-related issues on social media.
Online statements which result in a conversation among employees and where the conversation criticizes working conditions, pay rates and management are considered “concerted activity,” protected by federal labor law. However, in a recent ruling, the National Labor Relations Board (NLRB) issued a decision which eliminates unwarranted protection for employees who engage in obscene, racist and sexually harassing behavior under the blanket of “protected concerted activity.” The ruling now allows employers to hold employees accountable for their abusive or offensive conduct on the same basis as employees who are not engaged in protected activities. Employees who are victims of harassment, discrimination and other abusive conduct will not have to be concerned that the offender is immune under the NLRA.
While sometimes online conduct is so severe that employers can easily determine the appropriate consequences, in other cases, employers must balance legal requirements, employee and public relations concerns, and their own organizational values. Before an employee is disciplined or terminated for online speech, best practice is to go through a documented analysis to answer questions, such as:
- Is the employee at-will?
- Is there an employment agreement or collective bargaining agreement that governs the work relationship?
- Is the speech inflammatory, derogatory, offensive or racist?
- Did the speech violate an organizational policy(ies)?
- What is the impact of the employee’s conduct on the organization and its employees?
- Did the employee engage in protected activity?
- Is there potential damage to the organization’s culture and reputation for condoning the comments and/or not addressing or condemning them?
- What federal, state or local laws might apply to the circumstance?
Employers should be vigilant about reiterating the organization’s core values so employees know which behaviors violate organizational principles. Employees should be reminded of the procedures to report inappropriate conduct if they experience or know about it. Potentially problematic online speech or other conduct should be promptly investigated.
It is also recommended that employers work with their legal counsel to review any policies related to off-duty use of social media and how those policies interact with other organizational policies related to non-harassment, workplace bullying, standards of conduct, etc. However, it is not enough to just have policies. It is critical for the business’ practices to align with the written policy and to enforce those policies, as well as to train employees regularly about what is expected and what is prohibited.
With tensions running high due to the pandemic and the recent incidents involving police violence and the related protests, the anti-racist movement has come to a head around the world. Employers will increasingly see these issues in their workplaces as well, and in many cases, employers can take actions against their employees’ racist off-duty conduct. As such, employers need to be prepared to properly address and confront these issues and understand they may be required to do so to avoid legal liability and to promote and maintain a culture of inclusion.