The phrase “cancel culture” has become ubiquitous over the last couple years. It strikes fear in the hearts of social media influencers and public figures everywhere. One post in poor taste or the unearthing of a years-old tweet can bring a screeching halt to a politician’s campaign or an emerging artist’s rise to fame.
So, what’s an employer to do when an employee likes or shares an inflammatory article on Facebook or posts a TikTok with racially insensitive lyrics? Is the speech protected, or can the company “cancel” the worker’s career? Here are a few considerations.
First Amendment
Are employees entitled to unencumbered freedom of speech at their work or professional organization? The short answer is no, the First Amendment normally doesn’t apply to actions by private employers.
Generally, a private company can discipline an employee for a problematic post without issue because the First Amendment applies only to government action. The private employer’s freedom may be limited, however, if a collective bargaining agreement or individual employee contract prohibits the company from firing someone based on online activity.
National Labor Relations Act
A key thing to consider is whether the speech you’re seeking to punish is related to the terms and conditions of employment. Under the National Labor Relations Act (NLRA), you can’t prevent employees from discussing things such as their pay, benefits, or working conditions if doing so could be construed as “protected concerted” activity. So, an individual employee’s tweet griping about the bad day she had at work likely isn’t protected, but a Facebook group in which current employees can share complaints about their supervisors may be.
In 2020, the National Labor Relations Board (NLRB) changed its standard for determining whether employees were lawfully disciplined or discharged after making abusive or offensive statements (including profane, racist, and sexually unacceptable remarks) in the course of activity otherwise protected under the NLRA. Here is how the newly applied Wright Line approach works:
- The General Counsel must first prove the employee’s protected activity was a motivating factor in the discipline.
- If that burden is met, the employer must then prove it would have taken the same action even in the absence of the protected activity, for example, by showing consistent discipline of coworkers who engaged in similar abusive or offensive conduct.
So you can feel better about taking corrective action when ugliness arises in relation to an employee’s complaints about the workplace.
State Employee Privacy Laws
Some states have adopted specific legislation covering employers’ ability to control employees’ social media. Nebraska, for example, prohibits an employer from:
- Requiring or asking applicants or employees to provide their social media log-in information;
- Requiring or asking them to log in to their accounts in the employer’s presence;
- Forcing them to add any contact to their social network, including the employer; or
- Taking adverse action against them related to the above items.
Fifteen other states have similar statutes covering employers.
Lawful Activities Statutes
A handful of states have passed laws protecting employees from discipline for engaging in any lawful activity outside of work. While the laws are most commonly applied to marijuana use or an employee’s criminal history, the broad language has been used to provide protection for a worker’s social media activity.
Be sure to remain up to date with your state’s legislation on the issue.
Social Media Policy
Employer social media policies have been a hot-button topic for several years as the popularity of Facebook, Twitter, Instagram, and other sites has grown exponentially. Some companies have a strict no-personal-use policy when employees are on the clock or using company property, while others encourage their workforce to “be active, but act responsibly” on social media.
No matter what your approach is, there seems to be a common thread when employees post something on any social media outlet. Whether on or off the clock, they should:
- Make no reference to the employer in any capacity; or
- If they do mention the business, let it be known the post is strictly their own personal view and doesn’t necessarily reflect the company’s view on the topic.
Encourage employees to exercise good judgment in whatever they post, whether it’s company-related or personal, and remind them never to post anything that could be construed as racist or defamatory. Be sure employees understand they’ll be held responsible if they violate your policy for what they post on social media outlets.
After the plethora of recent cancel-culture incidents, consider providing refresher training on your company’s social media policy. In addition, even though it should go without saying, be certain your policy prohibits the posting of any proprietary or confidential information.
Kelsey Heino is an employment attorney with the Goosmann Law Firm. You can reach her at heinok@GoosmannLaw.com.