Social Media and the Workplace

What can my employer require of me regarding social media?

Frankly, not much.  Under the Right to Privacy in the Workplace Act, employers cannot request that you provide your social media login credentials.  Nor may an employer require that you invite it to your online group or require that you join a group that would allow your employer access to your friends.  Similarly, employers can’t require you to join the employer’s online account.  Finally, employers are prohibited from requesting that you authenticate or access an online account in their presence.

Do private sector employees have free speech rights to post controversial or inflammatory content on social media?

Let’s start with some basic principles.  The First Amendment restricts governmental action.  It does not restrict the actions of private individuals or corporations.  As such, in most instances an employee of a private (non-public) employer cannot assert that speech codes or restrictions violate his or her First Amendment rights.

If, however, a private employer’s restrictions implicate protections provided by other laws, then First Amendment issues may come into play.  For example, if a private employer restricted its employees from disclosing illegalities in the workplace, then the Whistleblower Act would be implicated, and the restriction would be impermissible.  Or, a private employer may not restrict its employees from criticizing the employer in public because the NLRB generally recognizes this as a right guaranteed to employees under the National Labor Relations Act. 

What about public sector employees?

The United States Supreme Court has held that public employers cannot require their employees to surrender their Constitutional rights.  Instead, it has held that the First Amendment protection of a public employee‘s speech (which includes social media) hinges on the balance “between the interests of the employee, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”  In short, public employees may freely speak unless that speech is too disruptive in the workplace.

How is this determined?  First, one has to determine if the speech relates to a matter of public concern or private grievance.  If the latter, work place discipline based on speech related to private matters does not implicate the First Amendment.  Workplace speech is only protected if it is a matter of public concern.  A matter of public concern is defined as “any matter of political, social, or other concern to the community.”  For example, a police officer who complained over inadequate training on use of force would be discussing a matter of public concern. 

Second, if the speech relates to a matter of public concern, one has to ask whether the right of free speech outweighs business reasons restricting that speech.  When speech impairs discipline or work relationships, or affects job performance or the “administration of public service,” it interferes with a public employer’s interests.  So in that instance, the government is allowed to restrict employees from using offensive speech to the public or co-workers and to discipline employees for violating the restrictions.. 

Will certain political content on my social media accounts give cause for discipline?

No.  Illinois employers may not discriminate based on party membership, election related speech, or voting.

Can a private employer discharge an employee over social media postings?

Most private sector employees are “at will” employees who can be terminated without cause.  For that reason, in general, an employer would be allowed to terminate an employee based on the content of their social media postings.  Well-advised employers, however, know that they have to treat employees equally.  Firing someone for online support of the Women’s march, but not firing someone with online support for BLM, could will be discriminatory.

That being said, certain federal laws protect employee’s rights to engage in certain workplace activity – such as organizing in social media forums to share workplace grievances.  Under this scenario where employees might be complaining about wages, management or other work conditions within the group could be protected from discipline.  BLM support in general would not merit protection.  But BLM support in connection with bringing attention to racial issues at an employer likely would merit protection under these federal laws.