In today’s world, social media platforms have become a central part of daily life, where employees share personal expression, political opinions, and even details about work. But off-duty conduct online can have real consequences in the workplace.
Private employers often worry that social media posts by their workers will damage the company’s reputation, reveal trade secrets, or disrupt workplace relationships. As a result, they may consider disciplinary action or even fire employees over social media misconduct.
Yet not all off-duty social media content is fair game for discipline. Certain posts are protected under federal and state labor laws—particularly the National Labor Relations Act—as protected speech or protected concerted activity.
This guide explains when off-duty conduct on personal social media accounts is legally protected, when employers can act, and what both employers and employees should know about social media-related issues.
Social Media in the Employment Context
Employers increasingly monitor social media use for job applicants and current employees alike. Posts that include inappropriate or offensive content, bullying behavior, or attacks on other employees can quickly become social media misconduct that employers see as grounds for disciplinary action.
Common concerns include:
- Posting negative remarks about customers or management.
- Revealing company resources or trade secrets.
- Sharing inappropriate conduct reflects badly on the organization’s reputation.
- Creating a hostile work environment through discriminatory content about a protected class.
- Engaging in online bullying behavior that damages workplace relationships.
But even with these concerns, employment law sets limits on what employers can regulate.
At-Will Employment and Off-Duty Conduct
In most states, at-will employment gives employers broad discretion to terminate employees for any reason—or no reason at all—as long as it doesn’t violate applicable laws.
However, lawful off-duty conduct may have protections, depending on the content of the social media posts and the legal framework.
Private sector employees do not have unlimited free speech rights at work in the way government employees do. The First Amendment protects free speech from government restriction but does not specifically prohibit private employers from setting workplace policies about acceptable online behavior.
The National Labor Relations Act and Protected Speech
One critical limit on employer control over social media use comes from the National Labor Relations Act (NLRA), a federal law enforced by the National Labor Relations Board (NLRB).
The NLRA protects private sector employees’ rights to engage in protected concerted activity. This means employees can discuss:
- Wages and benefits
- Working conditions
- Concerns about management
- Efforts to organize unions or collective actions
These concerted activities can involve social media. For example, social media posts complaining about unsafe working conditions or low pay made with or on behalf of other employees may be protected.
Social Media Firings: When Off-Duty Posts Are Protected
Employers cannot legally discipline or fire employees for protected concerted activity, even if it happens on personal social media accounts.
What Is Protected Concerted Activity?
Protected concerted activity is when employees act together to improve workplace conditions or discuss collective concerns. Even a single employee’s social media post can be protected if it’s meant to encourage group action.
Examples include:
- A worker posted on Facebook to rally colleagues to demand better pay.
- Discussing unfair schedules on Twitter in a way meant to organize other staff.
- Criticizing unsafe conditions on Instagram to get co-workers involved.
Employers violating these protections may face NLRB charges and orders to reinstate fired workers with back pay.
When Social Media Posts Lose Protection
Not all social media content is protected. Posts that cross certain lines can justify discipline or firing:
- Inappropriate or offensive content directed at customers or colleagues that creates a hostile work environment.
- Disclosing trade secrets or sensitive company resources.
- Threats, harassment, or discriminatory remarks against a protected class.
- Violating company policy about professional conduct.
Even protected concerted activity can lose protection if expressed in violent, threatening, or egregiously offensive terms.
Employer Social Media Policies
Employer’s social media policy is crucial for setting expectations. Good policies:
- Define acceptable online behavior.
- Explain the consequences of social media misconduct.
- Address off-duty conduct that harms the company’s reputation.
- Clarify rules about using company resources to post.
- Prohibit sharing trade secrets.
- Remind employees about professional responsibility and professional conduct.
But policies must be careful not to chill protected speech or protected concerted activity.
The NLRB has struck down employer policies that were too broad, such as rules banning all criticism of the company online or forbidding discussion of wages.
The Role of the National Labor Relations Board
The National Labor Relations Board reviews cases of alleged retaliation for protected concerted activity.
Employers can face legal orders to:
- Reinstate private sector employees wrongfully terminated over social media posts.
- Pay back wages.
- Revise overbroad workplace policies that unlawfully restrict employee speech.
Employers should consult legal counsel when drafting or enforcing social media policy to ensure they do not violate the NLRA.
Equal Employment Opportunity Commission and Discrimination Claims
Social media-related issues also involve discrimination law. The Equal Employment Opportunity Commission (EEOC) enforces federal law prohibiting employment discrimination based on:
- Race
- Color
- Religion
- Sex
- National origin
- Age
- Disability
Employers disciplining employees for social media content must ensure they are not retaliating for complaints about protected characteristics or violating anti-discrimination laws.
An employee fired for posting about sexual harassment or religious discrimination, for example, might have a strong discrimination claim.
Government Employees and Free Speech
Government employees have additional free speech rights under the First Amendment.
Public employers cannot discipline workers for protected speech on matters of public concern, except in limited cases (like speech that disrupts operations or harms trust in government).
Public employees discussing political speech or criticizing policy on personal social media accounts may have protections that private sector employees do not.
Real-World Consequences of Social Media Misconduct
Even with legal protections, social media misconduct can lead to real-world consequences. Employees may face:
- Damage to professional networking opportunities.
- Loss of current employment under at-will employment if posts are unprotected.
- Harm to the organization’s reputation that leads to discipline.
- Ruined workplace relationships if posts attack other employees.
Employers need to balance discipline with respect for protected speech.
Best Practices for Employers
Employers can reduce risk and maintain a professional workplace by:
- Drafting clear social media policies that respect protected concerted activity.
- Remind employees about professional responsibility and professional conduct online.
- Train managers to recognize protected speech and concerted activities.
- Work with legal counsel to ensure the company policy complies with labor laws.
- Respond carefully to social media related issues to avoid legal liability.
Best Practices for Employees
Employees can protect themselves by:
- Understanding employer policies on acceptable online behavior.
- Keeping personal social media accounts professional.
- Avoiding inappropriate conduct or attacks on protected classes.
- Using social media to raise workplace concerns in ways that count as protected concerted activity.
- Consulting an employment law attorney if they face disciplinary action over online behavior.
Even social media disputes and the role of attorneys have gained much traction over recent years.
Off-Duty Conduct and Company Policy
Apart from an employment law attorney, there are other details to remember. Off-duty conduct can affect employment when it involves:
- Public posts about trade secrets.
- Attacks on other employees.
- Speech that creates a hostile work environment.
- Conduct that seriously harms the organization’s reputation.
Employers have the right to maintain workplace policies that address these risks. But those policies must avoid restricting lawful off duty conduct that is protected by federal law.
Need Help? Bourassa Law Group Can Assist
If you’re an employee facing disciplinary action over social media posts, or an employer trying to draft a strong, lawful social media policy, Bourassa Law Group can help.
Our experienced team understands employment law, labor laws, and protected speech requirements. We can help private employers design fair policies that protect their company’s reputation while respecting employee rights.
Contact Bourassa Law Group today to make sure your workplace policies support professional behavior without violating federal law.
Conclusion
Social media use raises real challenges in the modern workplace. Private sector employees have limited free speech rights at work, but they do have protections for protected concerted activity under the National Labor Relations Act.
Employers must carefully balance employee conduct expectations with legal protections for employee speech. A clear, fair social media policy developed with legal counsel can help ensure acceptable online behavior while respecting the rights of individual employees.
By understanding the law, both employers and employees can avoid social media related issues that lead to conflict, legal liability, or damage to professional relationships.
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