In 2017, former Supreme Court Justice Anthony Kennedy noted in Packingham v. North Carolina¹ that the most important place for the exchange of ideas is no longer the physical town square but cyberspace and, in particular, social media. Social media has only gained currency since then as the predominant forum for political discourse.

As election season enters its final stretch and international events such as the Israeli-Palestinian conflict are dominating the headlines, employers should expect that many of their employees will engage with political content on social media. Although political engagement by the citizenry is necessary for a democracy to thrive, the transformation of social media into a digital town square also generates issues in the areas of employment and labor law, with significant implications for employers. As a result, employers must be attuned to these risks and prepared to negotiate the line between employees’ rights and the limits on those rights, to prevent and address any employment-related issues that may arise.

Risks of Employee Use of Social Media for Political Purposes

1. Social Media Exacerbates the Drawbacks of Political Discourse in the Workplace.

Because they involve subjects of personal significance to employees, political discussions in the workplace are often problematic, and even minor disagreements can turn heated. Polling data reveal that many find political discussions stressful and frustrating, rather than informative or interesting, and a majority think that another’s political views “say a lot” about their character, a statistic that suggests political disagreement can erode characteristics of high-performing teams, including mutual trust, collaboration, and communication.² This raises a concern that political discussions might negatively affect productivity, employee morale and relationships among coworkers.

While political discourse in the workplace has always been fraught, social media tends to exacerbate its downsides. As the U.S. Court of Appeals for the Ninth Circuit recently explained in a sexual harassment case, Okonowsky v. Garland, social media differs from traditional means of communication in important ways. Unlike offhand comments shared among a small group in a breakroom, “[s]ocial media posts are permanently and infinitely viewable and re-viewable by any person with access to the page or site on which the posts appear.”³ Other users can amplify a post by “liking” or “supporting” it, leaving a comment, or reposting it to their own account—features which, in tandem with proprietary algorithms, allow a fraction of content to go “viral.” Even with non-viral content, social media offers users a much wider audience than they would otherwise likely have. Given these features, employee use of social media to engage in political speech could have an outsized detrimental effect on workplace relationships and culture.

2. Social Media Increases Public Relations Dangers for Employers.

Because of social media’s extensive reach, a company’s consumer base may come to associate employers with content created and shared on social media by their employees. It is often easy to discover where the owner of a certain social media account works through a simple online search, if the information is not contained in the individual’s profile itself. Should an employee’s social media post be politically offensive or controversial, and the employee is readily connected to a particular business, consequent exposure may generate complaints from coworker or the consumer public. In extreme cases, such exposure could even threaten damage to the company’s brand.

3. Social Media Use Could Expose Employers to Discrimination and Harassment Claims.

In July, the Ninth Circuit overturned a district court decision finding no actionable harassment where the conduct occurred entirely outside of the workplace. Okonowsky v. Garland involved a supervisor’s personal Instagram account that contained “overtly sexist, racist, anti-Semitic, homophobic, and transphobic memes.” The Ninth Circuit rejected the employer’s position that social media generated outside the workplace cannot form the basis of a hostile work environment claim. The court pointed out that coworkers could view, comment on, and otherwise interact with the offensive posts inside and outside the workplace. “[I]n light of the ubiquity of social media and the ready use of it to harass and bully both inside and outside of the physical workplace,” the court rejected the distinction between conduct occurring in the workplace and social media content produced and viewed outside of work.

Okonowsky highlights the risk that employees’ entirely offsite use of social media could contribute to a hostile work environment if the content is harassing and affects the working environment. Further, because the standard for hostile work environment accounts for the totality of circumstances, social media posts need not target the plaintiff to subject an employer to liability. The Ninth Circuit’s position is consistent with Equal Employment Opportunity Commission (EEOC) enforcement guidance released in April, which indicates that conduct on social media platforms outside the workplace may contribute to a hostile work environment. Notably, however, the EEOC indicated that social media content will not generally, by itself, lead to a hostile work environment unless the content targets the employer or its employees.

The Israeli-Palestinian conflict has brought related issues to the forefront. The October 7, 2023 Hamas attack and Israel’s response have prompted an outpouring of strong reactions on social media. Because the conflict entails issues of ethnicity, religion, and national origin, employers that act against employees for their public statements about the conflict risk an anti-discrimination lawsuit. Over the past year, many businesses have faced scrutiny for allegedly disciplining and discharging employees who were outspoken in their support of either Israel or Palestine, and some are now defending lawsuits brought by employees who were sanctioned for this conduct.

4. Social Media Posts Can Be Used as Evidence of Bias.

Political content on social media frequently touches upon hot-button issues such as reproductive rights, immigration, LGBTQ rights, and affirmative action and other efforts at increasing diversity. Because these political issues are entwined with characteristics protected by anti-discrimination law, if a manager or another in a decision-making role discusses controversial topics on social media, a litigant could use the decision-maker’s statements as circumstantial evidence of bias, as courts have recognized.

Even less-controversial statements may pose risks. Consider, for example, a manager who advocates on social media for younger political leadership. (A significant majority of Americans, regardless of party affiliation, supports age limits for Congress and the Supreme Court.⁴) Because social media searches are a common litigation tool, even if the manager has a limited social media following, these posts are unlikely to be overlooked. And even if not inflammatory, they could become an exhibit in an age bias lawsuit after the same manager oversees a round of layoffs.

Limits on Employers’ Ability to Curtail Employee Social Media Use for Political Purposes

Because of the risks noted above, employers may at first blush wish to monitor and restrict employee social media usage, including outside of work. While the First Amendment does not restrict private employers from policing their employees’ speech, other legal and social commitments may. Practically speaking, because of a robust “free speech” culture in the United States, a prevailing notion that persons should be able to express themselves authentically, and the growing expectation that professionals build an online “brand,” employers may shy away from regulating their employees’ speech on social media, despite countervailing risks.

There are also legal limits on actions employers can take in response to employee social media engagement. Some states, like California and Colorado, prevent employers from terminating employees for their lawful off-duty conduct, while others, like South Carolina and Louisiana, protect employees from discharge for their political opinions. California and New York, among other states, forbid employers from preventing employees from engaging or participating in politics. In notably broad fashion, Connecticut protects employees from discipline for the exercise of their First Amendment rights.⁵

Moreover, dozens of states have social media privacy laws that prohibit employers from accessing an employee’s non-public social media posts. An employer intending to discipline an employee for social media post must be able to prove they did not obtain the post in violation of the applicable law’s privacy safeguards. Under these laws, any discipline issued as a result of improperly obtained social media posts could subject the employer to liability. Given the various ways states address these issues, employers must carefully review state and local laws to ensure their remedial efforts are consistent with these frameworks.

Another limiting consideration for employers that seek to regulate employees’ political speech on social media is the National Labor Relations Act (NLRA). The NLRA, which applies to all non-supervisory employees, both unionized and non-unionized, guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities,” more simply known as “protected concerted activity.”⁶ [Emphasis added.] The National Labor Relations Board (NLRB), the federal agency that enforces the NLRA, provides guidance on its website explaining that “[u]sing social media can be a form of protected concerted activity” but is limited to “the right to address work-related issues and share information about pay, benefits, and working conditions with coworkers on Facebook, YouTube, and other social media.”⁷ The NLRB’s guidance further recognizes certain limitations on how the NLRA applies to social media postings:

But just individually griping about some aspect of work is not ‘concerted activity’: what you say must have some relation to group action, or seek to initiate, induce, or prepare for group action, or bring a group complaint to the attention of management. Such activity is not protected if you say things about your employer that are egregiously offensive or knowingly and deliberately false, or if you publicly disparage your employer’s products or services without relating your complaints to any labor controversy.⁸

As one might expect, the work-relatedness of employees’ socio-political speech has been the subject of litigation. As far back as 1978, the Supreme Court made clear that employees’ support for employees other than their own employer’s can be protected concerted activity, but “at some point the relationship becomes so attenuated that an activity cannot fairly be deemed to come within the ‘mutual aid or protection’ clause.”⁹ The NLRB under the present administration has dramatically expanded the concept of protected concerted activity. Recent NLRB decisions suggest that individual employee speech directed at political or social causes could trigger NLRA protection, but not all such speech is connected to work-related concerns. While these cases did not involve social media, the NLRB’s reasoning would apply to activity on social media.

Recommended Practices

• Social Media Policies. Employers should consider developing a clear policy that establishes acceptable contours for employee use of social media, including online political engagement. The policy should specify which types of political activity or expressions are regulated and clarify whether it applies to personal use of social media or only when social media is used during working time and on company resources. Further, any restrictions must advance a legitimate and substantial business interest, such as preventing unlawful workplace discrimination and harassment. In crafting a social media policy, employers must account for activities and communications protected by the NLRA and applicable state and local laws. Because of the stringent standards for workplace policies and rules adopted by the NLRB in Stericycle, Inc.,¹⁰ employers should consult with experienced labor counsel to ensure their policies are not subject to the challenge under the NLRA.

• Communication Regarding Policies. As the election season progresses, employers should remind employees about their social media and related policies. Before doing so, employers should review their current policies to ensure they align with the latest legal developments.

• Consistent Application of Policies and Investigations. Employers should enforce all policies and rules in a consistent, uniform, and non-discriminatory manner. If an investigation is necessary, the investigation must be conducted thoroughly and impartially. In conducting the investigation, employers should be mindful of laws that prohibit employers from forcing employees to allow access to their social media accounts. If a company can demonstrate that it has applied its social media policy in an equitable manner, and has conducted an impartial investigation before taking any adverse action, it will have a stronger defense against discrimination claims.

• Training. Employers should train employees on their social media policy, and should also consider training supervisors and managers on how to address complaints involving an employee’s social media communication.

• State and local laws. As detailed above, some states offer more robust employee protections in this domain than does federal law. Before implementing a social media policy or investigating an employee’s social media use, employers must understand the scope of protection offered by the particular jurisdictions in which they operate.¹¹