In today’s polarized and digital world, employers are increasingly faced with the challenge of responding to employees’ social media activity outside the workplace. Online posts discussing controversial political or social topics can quickly spill over and have a significant impact in the workplace, including affecting morale, productivity, and creating legal risk. When navigating these situations, employers must carefully consider numerous overlapping legal issues.
Public Sector Employers and the First Amendment
The first question to consider in any situation involving political social media posts is whether the employer is a private or public entity. Many employees often believe they have First Amendment protections against discipline for political speech, but that is true only in the public sector. Private sector employers are not bound by the First Amendment.
For public sector employers, courts apply a three-step test when evaluating political or social media speech:
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Was the speech made pursuant to the employees’ official duties? If it is, that speech is likely not protected.
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Does the speech discuss a matter of public concern? If the speech is not made pursuant to the employee’s official duties, the employer should next consider whether the speech discusses a matter of public concern. In the public employment context, speech on private concern does not receive protection, but speech on public concern does. If the speech falls outside of official duties and addresses a matter of public concern, however, the First Amendment does not necessarily protect the employee’s speech.
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Do the employee’s First Amendment interests outweigh the governmental employer’s interests in efficiently providing public services? This is a complicated analysis that must be done on a case-by-case basis. If the government’s interests in efficient public service do not outweigh the employee’s free speech rights, then the speech is protected.
In light of these complicated issues, public sector employers should consult with counsel before taking action based on a controversial social media post.
Anti-Discrimination Laws
Although it may seem counterintuitive, employers must also consider anti-discrimination laws like Title VII of the Civil Rights Act of 1964. Title VII prohibits most employers (public and private) from discriminating on the basis of race, color, national origin, religion, and sex. Title VII’s protections have also been extended by the United States Supreme Court to cover sexual orientation and gender identity.
Title VII does not provide protections based on political ideology or speech. Accordingly, taking action against an employee based on political speech generally will not violate Title VII. That being said, there’s a significant caveat here: employers must remain mindful of discrimination and harassment issues when addressing situations involving political speech.
In situations involving contentious workplace conversations about politics, an employer may be tempted to discipline employees for engaging in workplace political speech, based on a code of conduct policy or even a policy prohibiting political activity. Employers seeking to do so must act with caution. Specifically, any action taken based on discussion must be uniform. Treating employees differently based on different political views could correlate with protected classes under Title VII.
For example, imagine a scenario where employees of different sexes are arguing about a political issue, such as access to abortion. If an employer disciplines only employees on one side of the issue and that discipline happens to correlate with a protected class, the employer could be liable for discrimination under Title VII. Title VII also prohibits harassment based on protected classes. Again, the law does not protect political speech. But political speech can certainly relate to protected classes, which can then create liability risks under Title VII.
For these reasons, employers must be attentive to discussions about political issues that may relate to protected classes under anti-discrimination laws like Title VII.
National Labor Relations Act
The National Labor Relations Act (NLRA) is a law best known for governing unions. Similar to the misconceptions surrounding the First Amendment and private employers, there is often a misconception that the NLRA applies only to unionized workforces. That is not true.
The NLRA also applies to non-unionized workforces and protects the rights of private sector, non-supervisory employees to engage in protected concerted activity for mutual aid and protection. Employers are prohibited from taking adverse employment actions against employees who engage in protected concerted activity. This includes communications, online or otherwise, about the terms and conditions of employment, such as wages, hours, or working conditions.
Social media posts can therefore implicate employees’ rights under the NLRA. For example, if an employee supports a raise in a state or local minimum wage online, that speech likely constitutes protected concerted activity, and any employer discipline for that speech would be prohibited by the NLRA, whether or not the workforce is unionized.
Accordingly, employers must consider the content of social media posts and whether that content implicates protections under the NLRA.
State Employment Laws
Employers must also consider state employment laws before taking action. As a general matter, federal law (like those discussed above) sets only a floor for employee protection. State governments may exceed that floor with greater protection for employees. This principle is often applicable in the social media context.
For example, the First Amendment does not apply to private sector employers, and political status is not a protected class under federal law. But many states have greater protection. For example, Connecticut applies First Amendment protections to private sector employers, and California treats political affiliation as a protected class.
Similarly, although the NLRA generally applies only to private sector employers, states may have their own public sector protections. For example, Colorado has the Protections for Public Workers Act (PROPWA). The law provides many public employees in Colorado (mainly at the local government level) with expressive activity protections. Within expressive activity, there are protections for public participation while off-duty and not in uniform. The idea is that public employees have the same right to engage in public speech and other political activities as other Coloradoans. There are, however, exceptions. Disruptions to the workplace, official duty communications, and reasonable time/place/manner restrictions are permissible. In other words, these protections and exceptions under PROPWA are generally similar to the First Amendment analysis discussed above.
Other state employment laws may also be applicable. For example, Colorado’s Lawful Off-Duty Activities statute (C.R.S. § 24-34-402.5) prohibits employers from terminating an employee for engaging in a lawful activity off the employer's premises during non-working hours. There are exceptions for certain activities related to bona fide occupational requirements and conflicts of interest. However, as a general matter, off-duty political speech may well receive protection under this type of law. Refer to the whitepaper "Colorado Legal Activities Law" for more information.
Some states have also passed social media-specific laws. For example, Colorado has the Social Media and the Workplace Law. (C.R.S. § 8-2-127). This statute prohibits employers from taking certain actions with respect to employees’ social media accounts, such as requiring an employee to give the employer access to the account or requiring an employee to change privacy settings associated with an account.
Given the complex web of laws that may apply in these situations, employers should consult with counsel when responding to employees’ social media posts.
Practical Steps
Before an employer analyzes the potential applicability of these laws (and others), it must first investigate any alleged social media posts that have come to its attention. After determining the circumstances surrounding the situation, the employer should then analyze the risks associated with these laws and other state-specific laws, depending on the employee's location. This should be done in consultation with counsel. Employers Council has the resources to help employers navigate these complex situations. Members should reach out to us at info@employerscouncil.org with questions.
Drew Hintze is a managing attorney with Employers Council.