Employees have a right to express their political views on social media, but that doesn’t mean employers don’t also have rights to restrict certain speech. Allegra Lawrence-Hardy and Maia Taylor, labor and employment law attorneys at Lawrence & Bundy, give companies a refresher course on social media policy compliance as the 2024 U.S. presidential election looms.
The 2024 general election has garnered a range of views from across the political spectrum, views that many employees voice on their respective social media platforms and that some employees may choose to voice in offensive or even hateful ways.
Is your organization equipped to handle employee social media posts that may be categorized as hateful, offensive or potentially dangerous or violent and that can negatively impact your reputation, disrupt your business operations, jeopardize your customer base or impact employee morale and talent retention? Recent case law provides guidance on best practices that can strengthen your company’s social media policy in anticipation of the employee who shares controversial opinions online that could affect your organization’s brand and bottom line.
Reviewing your company’s social media policies in the context of your workforce’s online engagement is key, as is ensuring that you update your current policies consistent with new legal developments.
Trends in social media use
Social media is a large part of our personal, business and civic lives, and this reality is not going to change any time soon. Businesses, therefore, must routinely assess whether their policies mitigate the consequences of employee social media use and how such employee use can affect the business’s brand.
Politics is a major reason people use social media. A 2024 Pew study found that 59% of X users reported that keeping up with politics or political issues is a reason they use the platform.
Employers also need to be mindful that consumers rely on social media as a source of accountability for businesses, as demonstrated by a Sprout Social survey that found 81% of people reported that social media increases accountability for businesses.
While it is important to stay abreast of these statistics, it is also important to gather information on the culture of social media engagement within your organization. For example, on what platforms is your brand most vulnerable? In what ways are employees and consumers engaging with business-generated content?
In order to provide appropriate guidance to its workforce, it is imperative that employers not only understand the relevant social media platforms but also frequently review their social media policies to help protect the company’s brand from potentially offensive political content that an employee may post.
A strong social media policy can help shield companies from liability
Recent case law indicates that many courts are taking into consideration behavior that has occurred outside the workplace, including posts on social media, to determine employer liability for employee actions, such as harassment.
Courts are also weighing whether an employer can be held liable for disciplining an employee under the employer’s workplace conduct or social media policy for the employee’s online activity. For instance, in Urban v. C2 Educational Systems, a case from the Middle District of Florida, an employer’s social media policy helped shield the employer from liability by providing a legitimate business reason for an adverse personnel decision made after an employee violated the policy.
Likewise, the Northern District of Ohio recently stated in Knopp v. Brotherhood of Locomotive Engineers that “a private employer has the right to restrict a private employee’s use of social media and to discipline the employee when he or she makes statements that violate the policy especially where the statements … may put the employer in a bad light.”
As these cases demonstrate, the physical boundaries of the workplace do not draw the line for what may be actionable conduct. But what should a social media policy include to bolster an employer’s reliance on it in the event of litigation?
A statement describing the scope of the social media policy
As with the policy at issue in Urban v. C2 Educational Systems, a strong social media policy should explicitly state that it applies to social media use, even when an employee is off duty, if the employee’s social media platform identifies the individual as an employee of the company. The social media policy should also state that this identification need not be explicit and can also include the use of the company logo.
State that other policies, such as an anti-harassment policy, must be followed on social media
Courts, including the Ninth Circuit Court of Appeals in Okonowsky v. Garland, have held that harassment occurring online via social media is actionable and an employer can be held liable for such harassment. A strong social media policy should therefore inform employees that online harassment against coworkers will be subject to discipline under both the company’s anti-harassment and social media policies.
Ensure that updates to the policy are regularly communicated to employees and that employees verify receipt of updates
Although policies typically state that it is the responsibility of employees to read and familiarize themselves with company policies, companies should have a formal system or process for the timely notification to employees of policy updates. Courts, such as the Northern District of Ohio in Arredondo v. Beer Barrel Inc., often include as part of their analysis whether an employer’s records indicate that the employee had received a copy of the policy. Employers should also track and retain employee verification that policy updates have been received and read.
Social media policies must be narrowly tailored
Although employers should have strong social media policies in place to protect the company’s employees and brand, the NLRB in Stericycle, Inc. recently established a new standard that requires that an employer narrowly tailor its rules and policies to ensure concerted activity is not punished or discouraged. This standard, updated in August 2023, applies to social media policies.
How can employers ensure a robust social media policy does not unlawfully interfere with employees’ rights?
Ensure that the social media policy does not prohibit or otherwise chill the right of employees to engage in concerted online activities regarding the workplace, including discussing or advocating for workplace changes
Although a social media policy can prohibit illegal conduct that occurs online, such as harassment or discrimination, employees have the right to have lawful discussions on online platforms, including discussions regarding the workplace. A social media policy should be reviewed to ensure that it is not so broad that it restricts these protected rights and should also explicitly state that it is not meant to interfere with such rights.
Make sure enforcement of the policy is well-documented to support legitimate business reasons
A best practice is always to document the enforcement of policies and disciplinary actions. Employers should document violations of the social media policy and the disciplinary action taken to address the violation. Such documentation should be consistent with the business interest driving enforcement or discipline under the specific circumstances at hand.
Ensure consistent enforcement
Inconsistent enforcement of a policy can undermine an argument that a social media policy is appropriately tailored and indiscriminately applied. Employers should apply consistent discipline for similar policy violations. The language of the policy should also be carefully tailored so that a reasonable employee cannot interpret the policy to allow for potential inconsistent enforcement. As noted in a recent NLRB decision applying Stericycle to a company’s social media policy — Starbucks Corp. & Travis Hiett — a social media policy that appears to allow a company to “pick and choose whom to monitor based on whatever pretext it chooses” can violate the National Labor Relations Act.
Despite the contentious nature of this year’s elections, employers can use a strong social media policy to help protect employees and the company brand from potentially offensive social media posts from coworkers. Employee political expression on social media platforms is here to stay, but the law generally supports companies trying to protect employees and consumers from offensive content through workplace conduct and social media policies. Despite legal protections, companies must be mindful that social media policies do not restrict, discourage or punish employees from engaging in lawful concerted activities.
