Many people believe that the First Amendment grants them the right of unrestricted free speech, including on social media. But employees are often surprised to learn that the First Amendment protects specifically from government intrusion on free speech – it does not apply to intrusion on free speech by private employers. So, can an employer place limits on what an employee posts on their personal social media accounts? Read on to learn about the sometimes-complicated relationship between social media and the workplace.
Social Media Posts and Policies
New York is an at-will employment state, which means that an employee can be fired at any time without warning or reason.[1] Some states, however – including New York – protect employees (both public and private) from being fired due to their political or recreational activities outside of work (including social media posts). But the law has exceptions, including that it does not protect employees’ off-duty conduct that creates a material conflict of interest related to the employer’s business interest.[2]
To protect a company’s business interest, the company may create a social media policy regarding what employees cannot do on social media. Such a policy would allow an employer to fire an employee if they breach the policy, as long as the policy provisions do not violate the National Labor Relations Act (“NLRA”). Section 7 of the NLRA guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.”[3] Federal law also protects an employee’s right to engage in not only union activity, but “protected concerted” activity as well.
The National Labor Relations Board (“NLRB”) states that using social media can be a form of “protected concerted” activity. An employee has the right to address work-related issues and share information about pay, benefits, and working conditions with coworkers on Facebook, Twitter, and other social media platforms. However, some aspects of work are not “protected concerted” activity. Such activity is not protected if an employee says things about their employer that are egregiously offensive or knowingly and deliberately false, or if an employee publicly disparages their employer’s products or services without relating such complaints to any labor controversy.[4]
Recent NLRB Decisions
In a 2017 case, the NLRB created a two-step process called the “Boeing Test” (named for Boeing as a party to the case) for evaluating whether facially lawful workplace policies (such as a social media policy) unlawfully interfere with employees’ rights.[5] Step one is to determine whether the workplace policy reasonably interferes with the employees’ rights under Section 7 of the NLRA. If the policy does interfere, then the next step is to determine the employer’s justifications for the policy and balance those justifications against the interference with the employees’ rights.
The NLRB used the “Boeing Test” in a 2020 case, Bemis Company. In this case, the NLRB upheld a company’s social media policy.[6] Specifically, the NLRB found that the policy, when read in its entirety, “makes clear that to safeguard the reputation and interests of the company, employees referring to the company on social media must be respectful and professional, must not disclose proprietary information, must respect their coworkers, and must not harass, disrupt, or interfere with another person’s work or create an intimidating, offensive, or hostile work environment.”[7]
Specific Issues for Public Employees
Unlike private employees, public employees do have a limited First Amendment free speech protection. Yet this only applies when all three of the following criteria are met:
- They are speaking as a private citizen;
- Their speech pertains to a matter of public concern, such as a social, political, or community matter; and
- Their interest in speaking freely outweighs the public employer’s interest in efficiently fulfilling its public services.
If all these criteria are not met, a public employee can be legally fired for their social media posts. For example, a police officer, who is employed by the government, can be fired for making controversial posts related to racial and social issues because the police officer’s interest in speaking freely does not outweigh the department’s interest in efficiently fulfilling its public service.
Whether you are an employee facing pushback from your employer regarding social media or an employer considering a social media policy, please contact us for guidance.
[1] An employer in New York, whether public or private, cannot fire an employee due to an act of illegal retaliation or discrimination based on race, creed, national origin, age, disability, gender, sexual orientation, marital status, political or recreational activities outside of work, legal use of consumable products outside of work, membership in a union, or making a complaint to the employer. See NYS Human Rights Law; NYS Labor Law Section 201-d; NYS Labor Law Section 215.
[2] NYS Labor Law Section 201-D.
[3] Codified as 29 U.S.C. § 157; Interfering with Employee Rights, NLRB, https://www.nlrb.gov/about-nlrb/rights-we-protect/the-law/interfering-with-employee-rights-section-7-8a1 (last visited Mar. 18, 2021).
[4] Social Media, NLRB, https://www.nlrb.gov/about-nlrb/rights-we-protect/the-law/employees/social-media-0 (last visited Mar. 18, 2021).
[5] Boeing Co., 365 NLRB No. 154 (2017)
[6] Bemis Co., 370 NLRB No. 7 (Aug. 7, 2020)
[7] Id.
