Employers' Considerations when Employees' Online Content Results in Real-World Discord in the Workplace
Employers may be wondering what action they may take when an employee utilizes social media on personal time in a way that creates discord in the workplace.
Legal Considerations:
Free Speech Protections
Protected Concerted Activity
Regardless of whether the workplace is unionized, the National Labor Relations Act (NLRA) gives "employee[s], as that term is defined in the NLRA, "the right to join together with coworkers to improve" their "lives at work - including joining together in cyberspace, such as on Facebook." As a result, employee speech that can be considered "concerted activity" under section 7 of the NLRA may be protected speech under that law, restricting actions employers may take regarding such speech.
Privacy Concerns and Limits on Social Media Access
Over half of the states have enacted laws that limit employers' access to employees' social media accounts. (New York's law only became effective in March of 2024.)
Some of these laws identify employer actions that are not within their scope (e.g., New York excludes access from its law's coverage when the access occurs under certain circumstances in the context of an investigation and when the review is necessary to comply with "a duty" "to monitor or retain employee communications that is established under federal law" or by self- regulatory organization (as defined), such as FINRA, in addition to other carved-out scenarios).
Discrimination Claims, Possible Comparators, and the Importance of Consistency
Depending on the circumstances, federal, state, and local laws that prohibit discrimination and harassment on the basis of protected characteristics may also be implicated.
Harassment Claims
These laws prohibiting discrimination and harassment also could be triggered if the individual engaged via social media in behavior that is harassing on the basis of a characteristic protected under applicable law.
Off-Duty Conduct Laws
Some states, including California, New York, and North Dakota, prohibit employers from discriminating against employees based on their employees' lawful off-duty conduct. In New York, for example, employers are prohibited from discriminating "because of" an individual's lawful "political activities" or "recreational activities" that the individual engages in "outside work hours," off the employer's premises, and without the employer's property, with limited exceptions, such as when the employee activity "creates a material conflict of interest related to the employers."
Non-Statutory Considerations
Where an employee is otherwise subject to at-will employment, employers generally may terminate employment for any lawful reason or no reason.
Considerations Specific to Elements of Social Media and Other Technology
Other questions employers should consider include:
Where emojis are involved, is the meaning of the displayed emoji clear, especially if the emoji has alternate meanings? Also, how does the appearance of the emoji differ between platforms?
Has artificial intelligence been utilized to create a deepfake in a profile that does not actually belong to the employee?
Are there factors that suggest that any electronic evidence has been fabricated?
The Bottom Line
Employers may choose to discipline employees for speech, but that decision should be navigated with care to avoid legal pitfalls.
Reviewing and updating potentially applicable policies, including social media and other electronic communications policies;
Training or otherwise reminding employees regarding expectations related to their social media use and regarding the procedure or mechanisms for submitting complaints;
Ensuring compliance with state-mandated anti-harassing trainings;
Implementing a process to ensure that caution, care, and consistency play a role when considering taking action, to limit the possibility of a misstep;
Determining which stakeholders (e.g., legal counsel, human resources professionals, communications/public relations professionals, etc.) should be apprised of, and involved in, the discussion (in whole or in part), should an issue arise.
This document is designed for general information only. The information presented in this document should not be construed to be formal legal or tax advice nor the formation of a lawyer/client.
For further information please contact me at www.kmckernanlaw.com kevin@kmckernan.com or 718-317-5007.