Twitter Clatter: When Employee Social Media Activity Makes Your Head Hurt

By Howard B. Jackson

Employers are increasingly dealing with situations where a member of the public complains about an employee’s private social media activity.  Generally, this involves an employee who in some way identifies themselves as an employee of the employer on the social media site and makes a comment that offends someone else.  The someone else then sees fit to contact the employer and complain.  Ironically enough this is frequently done via posting on the employer’s own Facebook page.  When this happens, what is the employer to do?

Is it Protected? 
One of the first questions to ask is whether there is something about the employee’s post that is protected by law?  There are several laws that may give protection to the statement the employee made.

For example, the National Labor Relations Act gives employees the right to engage in concerted activity for mutual aid and protection with regard to wages, hours and working conditions.  If the post involves communication about workplace conditions it may fall into this category.  It is not always obvious or easy to discern whether a comment falls within this category of protected communication.  Generally speaking if the comments reference working conditions, including matters such as pay, the work environment, or employer policies and practices, and if there is either response by other employees or an indication in the comment itself of some impetus toward group action, the comments are likely protected.

Employers sometimes wrongly assume that “disloyal” comments are not protected.  There is a sense in which any complaint about the organization’s practices might be viewed as disloyal.  But “disloyal” comments may still be protected.  On the other hand, statements that have no particular connection to working conditions and that are openly harmful are not protected.  An example would be simply urging the public not to buy the employer’s products because they are awful. 

A word of caution is in order.  The lines between protected and unprotected are not always clear, particularly under the National Labor Relations Act.  Where there is any doubt, that is a good time to consult a labor law attorney.

Equal Employment Opportunity (EEO) laws may also provide protection.  If the post in some way opposes what the employee believes is a discriminatory condition at work then it could well be protected by anti-discrimination laws.

Many whistleblower laws could also come into play.  By way of example, a concern about safety could implicate OSHA, or a complaint about environmental impact could raise EPA concerns. 

What about the First Amendment?  Some are under the impression that an employee can say anything they want, particularly when off duty, because the First Amendment grants the right of free speech.  For private employers, the First Amendment is not a concern. While the First Amendment prohibits the government from abridging certain rights, it does not prohibit private employers from taking action on the basis of employee speech. 

For governmental employers, the First Amendment is a concern, however it does not protect all speech.  In general terms a public employee’s speech is likely protected when the employee speaks as a private citizen about a matter of public concern and where the speech does not interfere with the job.

If the statement is clearly protected, then the employer cannot take an adverse action on the basis of the statement.  If some part of the statement is protected and other parts are not, then the employer will want to think further and consider more questions.

Does it Matter? 
It is worth asking whether the “offending” post actually matters.  It seems that people can be offended by all manner of things these days, including harmless opinions, comments that are simply rude or plainly no more than a rant or tongue-in-cheek statement.  It is not necessary to react to everything.

There are times when an employee’s post is not outrageous but also not appropriate and not something you would want associated with the employer as an organization.  In such cases simply bringing the employee’s attention to the fact you have received a concern, and to the reality that their post is not something that you wish to have associated with the organization, may be sufficient.  Where it is appropriate to do so, handling the matter in a low-key way such as this is best.

Suppose it really is awful?  Employees have been known to post comments that are blatantly racist or sexist, or that advocate violence, or that are otherwise wholly inconsistent with the values of the organization.  In these instances, the employer should follow its usual due process steps and speak with the employee before reaching a decision.  Assuming the process leads to the conclusion that the employee in fact posted such remarks it is certainly appropriate to discharge from employment on the basis of the post.

Expect to See More. 
With the election season upon us, and the other strife in the world, this issue is likely to come up more and more.  Facebook the employer provided an example this year. Brandon Dail, who worked as an engineer for Facebook in Seattle, called out another employee who had denied Dail’s request to add a “Black Lives Matter” reference to a Twitter banner for a Facebook tool.  The other employee said he did not want to be political in the banner.  The end result was that Dail was discharged for his conduct.

In July a Detroit area schoolteacher, Justin Kucera, alleged that he was discharged based on tweets supportive of President Trump and in particular his stance toward opening schools in the Fall.  He also posted a tweet that was derogatory toward “liberals” which he took down after a few hours. Soon after posting the tweets he was called into a Zoom meeting that included two Human Resources officers of the school district and asked to explain his tweets.  Mr. Kucera says that days later he was summoned to a second Zoom meeting and told he could resign or be fired.  He declined to resign and was discharged.  The school district denies that his political stance was the reason.    

Conclusion. 
When confronted with a social media post by an employee, consider whether there is anything about the post that is protected.  Think through whether the post really matters and if so, the nature of the most appropriate corrective step.  Stay calm and work your process …  that will lead you to a good result.