As widespread protests against police use of force continue nationwide, a number of employers have received complaints that employee social media comments on the protests include racist content. Employers naturally hesitate from intervening in off-duty employee conduct unrelated to work. But some of these postings, and public reaction when the author is identified as a company employee, have prompted disciplinary action, including termination of employment.
In general, private sector employers have the discretion to take disciplinary action, up to and including termination, against employees who engage in conduct deemed incompatible with the company’s values and expectations. There are a few exceptions to this general rule. If two or more employees use social media to criticize terms or conditions of employment, these statements can be deemed protected concerted activity, even if they use somewhat crude or provocative language. In some states, lawful products statutes prohibit employers from disciplining employees for lawful use of legal products off duty. However, these laws have generally not been interpreted to protect social media use.
When employees are told that they are being disciplined for statements made over personal social media accounts, their first reaction is often to claim free speech protections under the First Amendment. As any first year law student can attest, First Amendment protections only apply to actions taken by the government. Employees have no legal claims against private sector employers based on alleged free speech rights.
As a result of the recent protests, some companies are encouraging employees to start dialogues with regard to race relations in the U.S. Such honest conversations can include views that make some employees uncomfortable by calling into question assumptions they may have maintained. Employers need to set forth expectations that such conversations remain respectful, while acknowledging that they can include sensitive subjects. With that said, employers can appropriately react to racist statements, comments, jokes, or postings made by employees, whether in or outside of the workplace.