With a highly divisive U.S. Presidential Election between Donald Trump and Kamala Harris just weeks away, political social media posts have inundated newsfeeds. But what happens when a post goes too far, and/or an employee’s colleague or customer complains about a post to Human Resources?
Private employers are wondering if there is anything they can — or should — do to regulate social media posts by their employees. Recently, employers have faced public pressure to terminate employees for their politically charged social media activity. But are such decisions legal? What about enacting company policies that prohibit employees from posting political content on social media?
The answer likely depends on state law.
Every state (except Montana) follows some version of the employment at-will doctrine. This means that absent an employment contract term or statutory protection to the contrary, private employers may fire employees for any reason.
There is no federal law that prohibits private employers from disciplining or terminating an employee based on political activities or beliefs, including those shared on an employee’s personal social media account. And, unlike government employers, private sector employers are not limited by the First Amendment when it comes to policing their employees’ political speech on social media.
Louisiana, South Carolina Statutes Among Most Restrictive on Employers
Some states have stringent laws for employers, affording broad protections for employee political speech, while others are more limited. The Journal of Free Speech Law published a resourceful map developed by UCLA Law Professor Eugene Volokh that shows private employee speech protection statutes by state.
Many states across our Adams and Reese southeastern footprint — Alabama, Florida, Mississippi, North Carolina, and Texas — have no laws prohibiting employers from enacting policies to regulate their employee’s political speech on social media. However, approximately half of the states in our footprint have laws that could impact a private employer’s ability to influence or control employee political activity online.
Louisiana, Colorado, South Carolina, and the District of Columbia have adopted restrictive statutes on employers, affording protection for employees. For example, Louisiana prohibits private employers (with 20 or more employees) from adopting any rule or policy, or attempting to control, direct, or influence the political affiliations or activities “of any nature or character” of its employees. (La. Stat. Ann. § 23:961).
Similarly, South Carolina has made it a crime to fire an employee “because of political opinions or the exercise of political rights and privileges.” (S.C. Code Ann. § 16-17-560).
Other states, like Georgia and Tennessee, have laws that center around voting-related activity. Although narrower, these laws could still be implicated by disciplinary action or termination depending on the content of the employee’s post.
Navigating this issue can be tricky and requires employers to consider several factors.
Top Five Questions Employers Should Ask Before Policing Posts
Before addressing employees’ political activities on social media, employers should ask themselves the following:
1. What state law applies to the employee(s)?
Most state employment laws apply based on where the employee is physically located and performing work, and not where the employer is based. For example, a Texas-based employer may still need to comply with Louisiana’s political speech laws if its employee is working in Louisiana. With the recent implementation of remote work activities, employers should be diligent in identifying the applicable laws governing political speech protections for employees before negatively responding to an employee’s online activity.
2. Does the employee’s social media post touch on another protected issue?
Even if employees work in a state with no political speech protections, employers should consider whether their employee’s online activity relates to a different protected issue. Some of the most hot-button issues of this election cycle include abortion, immigration, LGBTQ+ rights, and racial inequality. Federal law makes it illegal for employers to make employment decisions based on a person’s race, color, religion, sex, national origin, age, or disability. So, if an employee’s post centers on these issues, consider whether discipline or termination on this basis could give rise to a discrimination or wrongful termination claim. The federal National Labor Relations Act (NLRA) — applicable to most employees of most private employers — protects employees’ right to discuss issues with their workplace conditions. Therefore, if an employee is posting about a candidate’s policies on topics like unions, minimum wage, and working conditions, an employer’s attempt to thwart such activity may violate the NLRA. This is especially true if the employee is interacting with co-workers on social media, as the NLRA applies when two or more employees are discussing terms and conditions of their employment.
3. Could the employee’s post constitute discrimination or create a hostile work environment for other employees if not addressed?
Discrimination and harassment concerns can cut both ways. Employers who wish to adopt a more hands-off approach to regulating their employees’ political activity on social media should still be cautious about an employee’s political content that might be considered discriminatory, harassing, or threatening to other employees. Such behavior online may open the employer up to a hostile work environment claim by other employees if not addressed.
4. Is there another basis to discipline or terminate the employee, unrelated to the political nature of the posts?
Even where a state law prohibits discrimination based on political activity, an employer may have another basis to discipline or terminate. This could be true where the employee’s online activity impacts work performance or violates company policy, such as a prohibition on the use of social media during work hours and/or on employer-owned devices. But employers should be careful to ensure that such discipline or termination could not be viewed as pretextual (i.e., the employer made up a “legitimate” reason to fire the employee, when the real reason would violate the law). Consistence in the application and enforcement of these policies, as well as proper documentation, are key to avoiding allegations of pretext.
5. What non-legal factors should be considered?
Beyond the legal implications, employers should consider the public and employee relations ramifications as well. Employers should consider the public reputational impact of taking — or not taking — action against employees whose political posts could be reflected on the company. Internally, employers should evaluate how action or inaction could impact employee relations. Employees often expect that employers will stay out of their personal lives and employees might view discipline for social media activity as a violation of privacy.
With heated online political discussions well underway, now is a good time for employers to revisit their company policies and applicable state laws to determine whether, and how, to address their employees’ political activity on social media.
About Our Author
Stacia Daigle is a member of the Adams and Reese Litigation Practice Group and a member of the Labor and Employment Team. An attorney in the Nashville office, Stacia represents clients across varied industries including on matters involving healthcare liability, premises liability, products liability, breach of commercial contracts, and employment litigation, including class action cases under the Fair Labor Standards Act (FLSA). Stacia has also represented clients in investigations and contested matters involving state regulatory agencies.