Social media outlets like Facebook and Twitter have made it easier for employees to speak publicly to broad audiences. Recent data indicates over three-quarters of American employees access one or more forms of social media.
Employers may be wary of their employees’ social media posts, particularly when employees identify their employers in their profiles, or comment about their bosses or companies. Apart from concerns that employees are posting when they should be working, employers may worry employees’ social media usage could reflect poorly on their businesses.
Employee social media content may also affect others in the workplace. For example, an employee may post content to which another employee objects. An employee’s controversial opinion in some instances may “go viral,” resulting in unwanted publicity for the employer. Unlike an offhand, offensive verbal comment, social media content is preserved indefinitely.
For these reasons, Employers may decide to discipline or discharge employees for social media activity that blurs the line between personal opinion and employers’ business interests. Employers should consider that employees have certain legal protections against employer responses to their speech at and away from work. They include engaging in “protected activity” under the Fair Employment and Housing Act (FEHA), political speech as defined in the California Labor Code, and protected activity under Section 7 of the National Labor Relations Act (NLRA). These protections are not unlimited, and they depend on the context and content of the communication.
The Fair Employment and Housing Act and analogous federal laws protect employees who oppose an employer’s practice that they reasonably believe violates anti-discrimination laws. For example, if an employee in good faith complains that an employer’s hiring practices result in sex discrimination, employers risk retaliation claims for taking negative action in response to the employee’s opinion.
Google recently discharged an employee whose objection to company diversity programs became public via social media outlets. Google claims the employee’s viewpoints were sexist and upset other employees. The fired employee claims he had a right to register his complaints. It remains to be seen whether the employee’s viewpoints constitute a legally protected activity, or whether Google will be found liable for retaliating against him.
California Political Speech Protection
California’s Labor Code prohibits employers from retaliating against employees based on “political action or political activity.” The California Supreme Court, in Gay Law Students Association v. Pacific Telephone & Telegraph Company, remarked that the Legislature created this law because “employers could misuse their economic power to interfere with the political activities of their employees…” The Court also held that this protection is not limited to attempting to persuade employees to vote for a candidate. The statute also bars employers from influencing their employees’ opinions on “issues of civil rights, such as racial and gender disparities.”
Employees discussing “wages, hours and other terms and conditions” of their employment may be engaging in protected activity under Section 7 of the NLRA. Under Section 7, “[e]mployees shall have the right… to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
Section 7’s protections apply not only to unionized employees, but also to non-union workers. The National Labor Relations Board’s test for “other concerted activity” asks “whether activity is ‘engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.’”
The Google employee discussed above filed an “unfair labor practice” claim with the NLRB, claiming his internal post on a company message board was protected activity. As non-union employers await the outcome of that case, they should keep in mind that their own policies or rules that “would reasonably tend to chill employees in the exercise of their Section 7 rights” may implicate the NLRA.
Public Sector Employees’ First Amendment Protections
The First Amendment of the U.S. Constitution protects individuals from government regulation of free speech, rather than private employer conduct. Public sector employees may invoke the First Amendment to protect their unpopular speech, but only to a limited degree. Public sector employees that “[speak] as a citizen on a matter of public concern” and in instances where the speech does not have “some potential to affect the [public sector employer’s] operations” are protected from employer discipline for that speech.
Employers have the right to make legitimate business decisions to protect their business interests. They also have the obligation to prevent violence or discrimination against other employees. However, there is tension in law between employee and employer rights regarding employees’ speech, particularly when employers are off-duty. As is often the case, employers may be caught between the proverbial rock and hard place.
Employers should adopt clear social media policies that conform to the laws discussed above and protect business interests. For example, employers may insist that employees include disclaimers in their profiles, or confine personal viewpoints to personal accounts that do not involve the employer’s name or the employee’s position with the organization. Good policies also educate employees as to what is unacceptable to post while operating employer social media accounts.
Unanticipated retaliation claims may reward employees for making statements that seem disloyal or contrary to business interests. Therefore, employers should analyze employees’ statements under legal frameworks discussed above before taking disciplinary action.
Finally, to help sift through the legal pitfalls, employers should consult with an employment law attorney regarding their existing employee communication and social media policies, and certainly before taking action against an employee who expresses views about matters protected by law.