What Can (and Can’t) You Do Regarding Employers’ Social Media Posts?

“One bad comment can quickly escalate from a spark to a forest fire.”
— Moiré Morón, vice president, NFP

Can an employer discipline its employees for what they say on social media?

Well, in the words of the popular Facebook relationship status of the late aughts, “It’s complicated.”

Corporate responses to workers’ social media posts — including those made outside of work hours or away from the office — have been a hot topic as of late.

Social media has added more visibility than ever before to conversations about racial, political and social issues — all deeply polarizing topics, said Moiré Morón, the vice president of management, cyber and professional liability claims advocacy at NFP, a risk management and benefits advisory firm.

On top of that, the number of platforms people can use to air their views continues to grow. Employees today are often more likely to push back regarding their right to free speech and expression — while their coworkers also are more prone these days to report social media activity to their employer.

“One bad comment can quickly escalate from a spark to a forest fire,” Morón said. “People are more vocal, reactive and comfortable sharing opinions publicly than ever before. Posts that might have stayed in a group chat five years ago are now screenshots waiting to happen. This dynamic can create tension in the workplace, and employers are placed in a position of having to respond — sometimes quickly and not always thoughtfully.”

In this climate, whether a business can (or should) move forward with disciplinary action in response to an employee’s online post depends on several factors.

Access bonus Workspan Daily Plus+ articles on this subject:

• Questions About Questionable Employee Posts: An HR Decision Framework
• Fake Posts, Real Consequences: AI’s Impact on Workplace Discipline
• Knowledge and Next Steps: Utilize Our Social Media Policy Template

Caveats and Considerations

Employers often respond to social media activity if it:

• Is harmful to the organization’s reputation or work;
• Discloses private or confidential information; or,
• Constitutes threats or harassment to other employees.

In some cases, posts that promote illegal behavior or are considered inappropriate or unprofessional may prompt discipline if they are shown to conflict with the organization’s values or brand.

In the U.S., employees may have protections against discipline based on if they are a member of a protected status or population and their post is related to that, causing the employer’s response to be viewed as discriminatory, or if the topic of the post itself is protected under certain laws.

“As a baseline, employers should assess federal law first and then carefully evaluate applicable state laws, as several states provide additional employee protections,” said Alicia Scott-Wears, a content strategy director at WorldatWork. “This is especially critical for multi‑state employers, where compliance obligations can vary significantly. These legal frameworks should inform how organizations craft social media policies and, in turn, guide how they respond to employee social media activity in practice.”

Legal Restrictions Coming Into Play

According to Morón, American employers are faced with a patchwork of guidelines and regulations related to workers’ online activity, rather than a single comprehensive law that governs appropriate responses.

At the federal level, Section 7 of the National Labor Relations Act (NLRA) safeguards “protected concerted activity” for private-sector employees — whether they are in a union or not — including communication about their working conditions, pay, benefits and collective bargaining. When workers post online about these topics, the NLRA often protects them from employer retaliation.

On the public sector and government front, federal or state rules regarding free and protected speech often govern the actions those employers are able to take related to online activity.

That said, there’s nuance to how employee protections are applied. Even when terminated workers challenge an employer’s decision in court, those decisions can be upheld when a post was found to impact the organization’s operations, mission, credibility or public trust, Scott-Wears said.

For instance, the Division of Advice within the National Labor Relations Board (NLRB) recently upheld the firing of an employee over a post discussing issues related to pay and other workplace conditions, stating that while the topic of the post may normally have been protected, the employee’s inclusion of a private meeting link that included confidential business information negated NLRA protection.

State laws, while fragmented, may also apply. They range from addressing how public figures use official social media accounts to prohibiting employers from disciplining workers for political speech or requiring access to employees’ or candidates’ social media accounts.

Knowing what types of comments are protected, and the extent to which employers are permitted to act, can help save businesses from legal challenges down the road.

“A lot of employers would be surprised that some posts that would otherwise be viewed as harming the reputation of the company could very well be considered protected concerted activity under the National Labor Relations Act,” said Jesse Dill, a shareholder and labor relations lawyer at employment law firm Ogletree Deakins. “It’s tough, it’s nuanced, and you oftentimes need to work with someone who is experienced in this area.”

Employers also can seek out guidance from federal agencies such as the NLRB and the Equal Employment Opportunity Commission (EEOC), Morón said.

At-will vs. just-cause environments also may come into play when an employer is disciplining or terminating an employee due to a social media post. Generally, in an at-will environment or state (which applies to all U.S. states other than Montana), employers can terminate a worker at any time, for any legal reason.

In just-cause settings — which also exist in certain cities and in most union environments — there is a greater burden placed on employers surrounding the discharge of an employee. That may include showing a progressive response, such as offering warnings or suspensions before termination, or additional steps taken to confirm an employee’s post is legitimate. Still, exceptions may be made for swifter action in just-cause settings for extreme posts, such as those threatening workplace violence, Dill said.

“When an individual’s actions penetrate the business — causing harm to its brand, image and trust with the public, customers or suppliers — it requires reparative action.”
— Alicia Scott-Wears, content director, WorldatWork

Social Media Policy Considerations

Businesses are not required to have a policy addressing social media use and discipline before formally responding to a worker’s post. But having a social media policy — one that is legally sound, regularly updated, and widely available and communicated — can help simplify questions around employers’ actions.

“If you get into a situation where someone files a legal claim over your adverse response to a social media post, in my experience, it’s persuasive to any fact-finder — whether that’s an investigator, judge or jury — that you communicated your expectations to the employee and they had an understanding of what those expectations were,” Dill said. “It helps give your explanation credibility to persuade the decision-maker that there wasn’t an unlawful action taken.”

Here’s what employers should keep in mind when crafting, communicating and applying a social media policy, according to Dill and Morón:

• Consult an attorney when writing the policy — but avoid “legalese” and present it in everyday language.
• Include clear guardrails around harassment, threats and discrimination in posts.
• Clearly address what constitutes confidential information or trade secrets, and how that information can or can’t be shared.
• Specify how employees’ social media use can impact the organization — and explicitly outline discipline they could face if they violate the policy.
• Make the policy available with your other employee policies, but don’t just present it without comment — include it in annual trainings or discuss it with employees in some way.
• Apply the policy consistently.

“My sense is employers don’t wish to take on the role of policing their employees’ thoughts, feelings and views on the world, but when an individual’s actions penetrate the business — causing harm to its brand, image and trust with the public, customers or suppliers — it requires reparative action,” Scott-Wears said. “Employers with social media policies are simply being transparent about their stance and the limitations that employees should be aware of surrounding social media use and their employment.”

Editor’s Note: Additional Content

For more information and resources related to this article, see the pages below, which offer quick access to all WorldatWork content on these topics:

• Equitable and Diverse Workplaces
• Organizational Performance
• Total Rewards