When Free Speech, Social Media, and Employment Collide. What are the Rules?

The rights of Americans are constantly in the news lately. Often the discourse questions if the rights supersede any potentially damaging effects, such as gun control and Second Amendment Rights. But this article is about The First Amendment, how it relates to social media use in the workplace and what are the rights of both the employee and employer. According to Pew Research Center, approximately 1 in 7 Americans use some form of social media, about 69% of the population. In other words, that’s a lot of people. The likelihood that some of those users are in the workplace is a given. With the prevalence of smartphones, smart watches, and a tablet or laptop in everyone’s hand, the chances that an employee completes their workday without accessing any social media platform is slim. So, what are the legalities concerning this ever-growing trend?

In 2017, you may have heard the story of an anchor on ESPN who received a highly publicized suspension for her Twitter activity in which she posted controversial remarks about the president and commentary about the disciplining NFL players for Anthem kneeling, but did she break ESPN’s rules? What about an employee who posts on social media complaining about their boss, their coworkers, or the work environment? Is there a difference? Yes and no. Some of what we say on social media is protected, some are governed by an employer’s policy, and some of it is fair game. Let’s take a look at each.

In the case of the ESPN employee, she works for a high-profile company that sponsors sporting events. Speaking out in any way that suggests a boycott or otherwise could be seen as a direct negative implication to her employer. That type of commentary is decidedly different than complaining the women’s restroom is always out of toilet paper. The ESPN employee may be bound under the company’s social media policy that she not publicly engage in dialogue that could be detrimental to her employer. Breaking that policy gives the company the right to take disciplinary action.

What does the law protect? The First Amendment doesn’t apply in all cases of social media use, but there are regulations that protect some of what people post. Under the Equal Employment Opportunity Act (EEOC), if an employee goes online to express concerns about illegal activity, such as discrimination, it is absolutely unlawful to retaliate against that employee by taking disciplinary action. Doing so can result in a lawsuit. For public sector employees, under the National Labor Relations Act (NLRA) dishing about wage details and other job conditions is also protected. Another important factor is considering how the employer learned of the employee’s social media activity. The employer has to be given access in a way that is freely accessible. For example, if the employee “friends” their boss on Facebook or follows coworkers on Twitter who share the post with the employer, then it is an acceptable method of accessing the information. If the employee uses company email or a business computer to tweet, the boss has open access to it and a legitimate right to view it. Also, any publicly accessible information, such as Glassdoor.com, can be viewed by employers.

The more we talk about the different scenarios the more convoluted it can be on both ends. But there are ways to simplify things. For employers, ensure there is a clear and specific social media policy in place located in the employee handbook and discussed with new hires. Ensure the policy complies fully with federal, state and regulatory laws. It’s also helpful to have an electronic policy in place regarding business resources for personal use. Clear policies can help clarify the blurred lines between work and personal life. To avoid legal but uncomfortable posts from friends and colleagues, consider a personal policy of limiting social media interactions with colleagues to LinkedIn, which is designed for professional networking.

For employees, be aware of your company’s policy on social media use. Depending on your personal use, consider limiting friendships with coworkers to LinkedIn. If you have particularly strong views on politics, religion, or other polarizing topics, think before you “follow”, “friend” or “connect” with coworkers on social media. Depending on your role and company, evaluate whether what you’re about to post is in your best interest or could come back to bite you later. A good rule of thumb is to visualize your post splashed on the front of the Wall Street Journal. If that idea makes you squirm, you probably shouldn’t post it.

It’s not all doom and gloom though. Social media can and does have many positive uses, such as employees posting about fun work events, great culture, or job openings. Sites such as LinkedIn are great networking tools amongst professionals in the same industry for keeping up with trends, education opportunities, and networking events. Employees posting on Facebook or tweeting on Twitter about their great job and company is always good PR. When it comes to smart social media use, the important takeaway is ensuring both employer and employee understand the rules.