Graphic Media Alliance

Scenario 1: An Off-Duty Rant Goes Viral

An employee posts a politically charged rant on their personal social media account over the weekend. It’s not about work, but it causes public backlash.

Legal Analysis:
Private-sector employers are not bound by the First Amendment’s free speech protections, which only restrict government action. That said, employers may not be able to discipline off-duty speech with total impunity. Several states – including California, New York, and Colorado – have statutes protecting employees from retaliation for lawful off-duty conduct, and Minnesota, Connecticut, Louisiana, South Carolina, and Wyoming are among the states that specifically protect off-duty political activity. These laws may prevent employers from firing or disciplining employees for expressing their personal views unless those views have a clear, material impact on the business.

Even without a directed state law at issue, the federal National Labor Relations Act (NLRA) could also provide your employees with protection. If the social media post relates, even indirectly, to the employee’s terms and conditions of employment, it may qualify as protected “concerted activity.” This is especially true if the post touches on workplace issues shared by coworkers (e.g., wages, scheduling, discrimination). The NLRB under recent interpretations has cast a wide net over what counts as protected speech, and this protection applies to non-union workplaces as well.

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