In the midst of the Black Lives Matter movement, thousands of people have taken to social media to express their thoughts on a variety of controversial topics. Many employees are probably wondering whether they can be disciplined for speaking their mind online. Similarly, employers likely want to know if they can discipline their workers for taking a stance on hot-button issues. This guide will help both employees and employers navigate social media during these divisive times.
Freedom of Speech
Some employees might think that they have a First Amendment right to post whatever they want on social media, but this would be a mistake. The First Amendment only applies to regulation of speech by the government, so private-sector employees do not enjoy freedom of speech with respect to their jobs. Generally, private employers are free to regulate the speech of their employees and may even fire employees for sharing their thoughts on social media. There are, of course, some exceptions to this general rule, which are covered below.
Public sector employers, on the other hand, are subject to the First Amendment. However, the Supreme Court has held that when the government is acting as an employer, it may place greater restrictions on the speech of citizens who are acting as employees. Courts will conduct a balancing test that weighs the employee’s interest in speaking on a matter of public concern with the government’s interest in the efficiency of its operations. This is a highly fact-intensive analysis that requires a case-by-case assessment of the content and context of the speech in question.
Unlike the First Amendment, anti-discrimination laws such as Title VII apply to public and private employers alike. Employers may not punish speech on the basis of some protected category – e.g., race, age, sex, religion, etc. Thus, if an employer punished a black employee for making a Black Lives Matter post but did not punish a white employee who participated in a different political movement, this could be a Title VII violation.
Recently, Starbucks sent a memo to its employees instructing them not to wear Black Lives Matter accessories, stating that it was a violation of the dress code to wear accessories that advocated religious, political, or personal views. Employees complained that the dress code was being enforced inconsistently because LGBTQ employees had previously been allowed to wear accessories in support of marriage equality. As a result, Starbucks quickly reversed its position. Employers should be careful to avoid Starbucks’ mistake and ensure that their policies are being enforced consistently.
Violations of Anti-Discrimination/Harassment Policies
Not only do anti-discrimination laws prevent employers from discriminating based on a protected status, they also require employers to provide their workers a work environment free from discrimination and harassment. This means that if an employee posts hateful speech online, they shouldn’t be surprised if they face discipline.
“Protected Concerted Activity”
Under the National Labor Relations Act, employees have a right to engage in “protected concerted activity,” meaning they have the right to address work-related issues and share information about pay, benefits, and working conditions. This includes online activity, such as social media posts. Social media posts that highlight discriminatory working conditions or pay disparities would therefore qualify as protected speech.
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