Podcast: Handling Employee Social Media Use Amid the 2020 Election

Long-time employment attorneys Jonathan Hyman and Robin Shea, both accomplished bloggers on workplace issues, join XpertHR Legal Editor David Weisenfeld for a wide-ranging discussion about employee social media use. Generally speaking, employers can hold an employee responsible for posts on their personal social media accounts. But there are lots of exceptions to the rule.

"Employers can't get too draconian or employees will perceive them as Big Brother," said Hyman. "The message shouldn't be 'don't post political stuff.' It should be 'let's be respectful.'" Shea asserted that employers must avoid content-based judgments. "You can't allow pro-Biden posts and not pro-Trump posts." Both agree there may be situations where employers may need to hold employees accountable for what they post on their personal social channels (e.g. harassment or calls for violence).

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Additional Resources

Election 2020: What Employers Can Expect

How to Draft and Enforce a Social Media Policy in the Workplace

Social Media Policy

Transcript

David Weisenfeld: I'm David Weisenfeld for XpertHR.com, published by Reed Business Information and proudly partnered with LexisNexis.

Politics always moves front and center as a presidential election draws near. But never has that been more true than this year, amid a global pandemic and civil unrest. And with passions running especially strong on social media, how should employers respond when their employees jump into the mix with an incendiary post?

On this podcast we'll discuss that question and much more, with a pair of notable employment attorneys who regularly blog about social media use, and other hot-button employment issues.

Jonathan Hyman is a partner with Meyers Roman in Cleveland, and is also the author of the book Think Before You Click - Strategies for Managing Social Media in the Workplace.

Robin Shea is a partner with Constangy Brooks, Smith & Prophete in Winston-Salem, North Carolina, and she authors the firm's highly popular Employment and Labor Insider blog.

Jon, I'll start with you. And welcome, it's great to have you on. [0:01:24.8]

Jonathan Hyman: It's great to be back. Thanks for reaching out. I really appreciate it.

David Weisenfeld: Well it's my pleasure, Jon. And as you know, many states have protections for off-duty speech and conduct when it comes to employees. But can an employer fire or discipline an employee for what they post on their personal accounts as it relates to the election? [0:01:43.6]

Jonathan Hyman: Oh God, I hate to start out with the stock lawyer "it depends" answer. But it depends. I mean, in an at-will environment where there is no legal protection for lawful, off-duty conduct, and no legal protection for speech, the answer is, "Probably, but it depends on the content of the speech."

  • "Is what you're writing, or what you're posting, does it touch on something otherwise protected by law, like protected concerted activity under the National Labor Relations Act?
  • Could it be deemed speech related to some kind of civil rights issue that an employee could argue has protections under Title VII or a state civil rights statute?"

So it really depends. But stripping those examples out of the frame, generally speaking, the answer is yes. I think it's fair game for employers to hold employees responsible, but there are always - and in this case - a lot of exceptions to that rule.

David Weisenfeld: Well that's a good place to turn it over to Robin. And Robin, great to have you back on with us as well. You've been a regular on our podcasts and webinars over the years.

And I'm curious where you see the line falling, and I'll give a concrete example. If an employee tweets "All Lives Matter," or something along those lines, that's going to be perceived as a swipe at a percentage of your workforce. So with that said, can an employer take action in that situation, and should they? [0:03:24.1]

Robin Shea: Well, big difference between "Can they?" and "Should they?" I agree with Jon. If you're in an at-will employment state and there isn't any laws specifically addressing that situation - and I do not believe in most cases that would be protected concerted activity under the National Labor Relations Act - yeah, an employer probably could fire an employee for doing that.

Should they? I'd say no. I think that would be an overreaction. And I'm generally pretty pro-free speech. I realize the First Amendment doesn't apply in most private workforces. But I think a better rule for employers to follow is definitely prohibit - even if it's on personal social media - a post that violates the company's harassment policy or its anti-discrimination policy. You know, if anybody is advocating violence or violent acts, that should be reasonable to prohibit and for the employer to take action against an employee who does that.

Or if the post is going to cause harm to the employer's reputation in the public or in the communities where it exists, then that's okay. But otherwise, I think employees need to have some freedom to express themselves on their personal social media accounts. When you start drawing those lines, "All Lives Matter is inappropriate. Black Lives Matter is okay," it becomes… the line-drawing that's necessary becomes really difficult.

David Weisenfeld: Sure.

Jonathan Hyman: Yeah, and the Lives Matter example is an especially interesting one because of the perception of "All Lives Matter" as being a reaction to "Black Lives Matter." And if you regulate one but not the other, are you potentially discriminating on the basis of race by treating "Black Lives Matter" versus "All Lives Matter," which some people perceive as, "White Lives Matter Too," is that a potential discrimination issue? So that, I think, stretches into an interesting area of the public debate that's currently going on over that issue.

But I would generally agree with Robin that I think employees should be left to express themselves, provided that what they're saying doesn't violate the law, doesn't violate company policy, and doesn't paint the company in some kind of negative light or harm the company's public reputation.

David Weisenfeld: Well I'm definitely going to come back to that point in just a little bit. But before I do, Jon, I wanted to ask you about the fact that the NLRB protects employees who are engaged in concerted activity, and that had me wondering if an employee could conceivably make the argument that the 2020 election involves concerted activities because, after all, it could affect their future pay and benefits, with the ACA in particular, and other key issues at stake. So what are your thoughts on that? [0:06:37.3]

Jonathan Hyman: The NLRB has taken a pretty broad look, or applied a broad definition, of what qualifies as protected. And so I think it would depend on the content of the post. So an employee, for example, saying, "I'm pro-Biden because Biden is in favor of paid family leave," for example, or, "I'm anti-Trump because Trump is not in favor or paid family leave," or, "his administration is perceived as not being pro-LGBTQ rights," or whatever.

I think that would be arguably an issue that bears on the terms and conditions of employment that would relate to that… I think could fall under the umbrella of Section VII of the National Labor Relations Act's protection.

But again, it's really going to vary case by case and depend on the content. And I think as much as the content, I think the context of what the employee intends in the writing or the posting of what they're putting online.

Robin Shea: Could I just say one thing about protected concerted activity? The National Labor Relations Board under President Trump has been pretty strict about wanting the speech to clearly relate to workplace conditions. So for example, I'm going to use Black Lives Matter as another example. If you're out protesting systemic discrimination in society, you are not probably going to be engaging in protected concerted activity under the current board's interpretation of that.

On the other hand, if you are talking about systemic racism in your workplace, then I think that clearly would be protected concerted activity. But the current board is taking a very narrow view of what is protected under the NLRA.

Jonathan Hyman: Yeah, and taking a more narrow view of concerted, whereas under the Obama board there were a number of decisions suggesting that the lone wolf, the employee just posting on his own Facebook page because he has the potential to engage with others, including co-workers, that might be enough to qualify as concerted. Whereas I think the current board has taken a much more narrow view of what concerted means and kind of gotten away from the lone wolf employee just out kind of shooting his mouth off on his own Facbook page as concerted activity that merits the Act's protections.

Robin Shea: Yeah, and I agree, Jon. There's a big difference between the Obama board and the current board. And it may flip back depending on what happens in November.

David Weisenfeld: Fair enough. Jon, I've read some employment law bloggers write that social media policies can actually backfire on employers. I was just wondering, with election season upon us, what's your take on that? And is it important to have one, and should employers be including politics in these policies if they do? [0:09:43.4]

Jonathan Hyman: I think it depends on what goal the employer's trying to achieve. I think if you're going to look to hold employees accountable, I think it is absolutely necessary that you spell that out for your employees, and you explain to them what that means.

I think if you kind of took a random poll of workers around America in the private sector, and asked them if they thought they had First Amendment rights at work, I bet at least half would say they do when in reality they don't because the First Amendment doesn't apply to private sector employers. It only applies in the public sector. It only regulates government.

And so because of that I think there is a large misconception by employees in terms of them believing that what they say and write on social media is protected, when in reality it might not be. And so because of that I think it's incumbent upon employers, if you're going to hold employees accountable - and for the reasons we talked earlier I think in a lot of cases you have to, whether the speech is unlawful harassment or otherwise violates company policy or can damage an employer's reputation, there are situations where you're going to want to hold employees accountable for what they post on their personal social channels.

It's incumbent on employers to express that in a policy and then train employees on what that policy means, so that there is no misunderstanding or no perception of unfairness or unreasonableness in the termination decision, if and when it has to be made, because it's those kind of dealings that lead to lawsuits, meritorious or not, the lawsuits down the road that employers have to defend.

David Weisenfeld: And Robin, anything you'd like to add to that? [0:11:25.9]

Robin Shea: I agree wholeheartedly with Jon, and especially on people thinking they have First Amendment rights in the private sector. We get that all the time when we do harassment training. People say, "Well what about my First Amendment rights?" "Well you don't have any. Sorry!"

The only other things I would add to what Jon said was, I do think employers need to watch out for making content-based judgements. You know, if they're going to allow - I hate giving these one side or the other but I'm going to go ahead and do it, okay? - if they're going to let pro-Biden people post whatever they want to post on social media, then they've got to do the same for the Trump people. They can't be distinguishing. As long as neither side's speech is crossing that line into some violation of an employer policy. So I think that's really important.

And in my opinion, the thing employer social media policies should be doing is encouraging people to be civil, co-workers to be civil with each other, and to respect opposing viewpoints. If somebody disagrees with you after you chose to post something political, then you need to be respectful of them and they need to be respectful of you.

Jonathan Hyman: You took the words right out of my mouth, and civility is the absolute key here, and that's what… particularly as we're now 30-whatever days away from the election, it's a conversation that employers should be having with their employees too. I mean, it's almost impossible to keep politics out of conversations these days. We're just inundated with it.

Online, you're turning on the TV, you know, whatever, we're just inundated with election-related stuff, and we will be between now and November 3rd. And because of that, I think it's unrealistic to expect it to stay out of the workplace, which is why I think employers need to be having those, "Let's keep it civil" conversations with their employees.

David Weisenfeld: And it's such a tricky area because even on Facebook - or especially on Facebook - I've had friends who say, "Wow, I can't believe Person X posted this," in favor of a particular candidate, and then that gets people talking. So you know, it's a very, very dicey area for sure. [0:13:58.6]

Jonathan Hyman: Yeah. I mean, I was just going to say I've lost friends not over differing opinions but because of their inability to let me respect mine. And that's what you're trying to avoid. That's where the conflict arises. It's not a lack of… we don't want our employees, we don't want society to be homogenous. We just want people to respect that other people are going to have differing opinions. That's all.

David Weisenfeld: Well this summer Mark Zuckerberg reportedly told Facebook employees, speaking of Facebook, that the company would crack down on polarizing political and social issues posted on internet message boards. That was following a virtual staff walk-out there. Jon, I know that was somewhat specific to Facebook, but since it deals with politics and social media use, I thought I'd throw it to you, and see if you had any thoughts on that. [0:14:46.6]

Jonathan Hyman: I'm not sure it's any different than what we've been discussing already. I'm not sure employers should be in a position of telling their employees, "Don't take a position online." I think the message shouldn't be, "Don't post political stuff," or, "Don't post anything polarizing," or, "Don't express an opinion different than the person in the office or cube next to you."

I think the message should be, and really needs to be, "We all have differing opinions. We're all going to go to the polls. Hopefully we're all going to go to the polls November 3rd. We're going to vote. There will be close to 50% that will vote for one side and close to 50% that are going to vote for the other, and when it's all over with we're all going to come back to work the next day and all work together.

And so let's be respectful of the fact that the person you are sitting next to, having lunch with, talking to, seeing their content on Facebook or Twitter or TikTok or wherever, might be different than your view. And let's respect everybody's ability or everybody's right to have a different opinion, and let's keep it civil and respectful." And I think that should be the message rather than, "Let's not post anything that might be polarizing or different, or might cause a discussion or a debate over an issue or a candidate or whatever."

David Weisenfeld: And Robin, what about you? Did you have anything you wanted to mention in reference to the Facebook example? [0:16:17.5]

Robin Shea: These were posts on Facebook's own internal messaging boards, right? As opposed to Facebook, you know, public Facebook that we all use?

David Weisenfeld: So some were on message boards. Some were also things that people put on their personal accounts on their own time. But they're seen as brand ambassadors, so that factors in as well.

Robin Shea: Okay. Because my answer… I agree wholeheartedly with Jon as far as posting on regular Facebook. As far as internal messaging boards, I really agree with what Mark Zuckerberg did. You probably don't want people to be spending their whole work day debating politics on internal employer-provided message boards for their employees.

I read some of the articles about what Zuckerberg had done, and it appeared that most of the employees who were opposed to his policy came from a particular political perspective. And I had to say, when I was reading these articles I was just wondering, "I wonder how they would feel if, you know, somebody posted 'Make America Great Again' or something like that. I imagine there would be an uproar against an employee who did that.

So I think he's right that, in the workplace on an employer-provided forum, people probably don't even need to be getting into that during work.

Now a personal Facebook account is a completely different issue. But I sympathize with what he tried to do.

Jonathan Hyman: But then are you also going to go in and regulate conversations in a lunchroom or conversations in the breakroom or regulate when Bill walks into Jane's office or stops by her desk and says, "Oh, did you watch the debate last night? What do you think about that thing Trump said or that thing Biden said or whatever?" I think it's a bit of a slippery slope to try and regulate it all.

And I guess if you're going to make the forum available, I think you should expect that employees are going to use it the same as they would use the breakroom or the lunchroom or the water cooler or the smoke porch or whatever. And I understand there might be a difference between work time and non-work time, and maybe that employees are spending too much time on the internal message board when they're not getting their work done. But I think that's more of a "how employees are spending their time" issue from a performance standpoint, and less of regulating the content that's being communicated.

Robin Shea: Yeah, and I guess the only thing I would say to that versus having a private conversation with a coworker about politics, or at the water cooler or at their desk, is when you're talking about a messaging board, there's such a difference in scale and permanence. You know, if I want to talk to a coworker about politics, I can choose the person I talk to. If we need to, we can do it behind closed doors. We can keep our voices low. Nobody else ever is the wiser about what we talked about.

But when you're doing it on a messaging board, or a message board, I'm assuming it would involve lots of people nationwide who don't even know each other really. I think there's a lot more potential for misunderstandings and hostility really as a result of what people post than there would be, you know, in a regular brick-and-mortar workplace where you might be able to talk to your coworker about the debates last night or whatever.

Jonathan Hyman: I think that's a fair point.

David Weisenfeld: With election season right here, and being so much in the heart of it, I'm curious if both of you are hearing more questions from clients on issues relating to social media use, just generally. And Jon, I'll start with you on that one. [0:20:29.9]

Jonathan Hyman: I've seen a slight uptick but not a huge uptick. I would expect I'll see more as the election gets closer. For example, eight, 12 years ago after Barack Obama, after both of his elections, I saw the bulk of the issues after the election. That's where I saw the bulk of the issues arise.

And I think, given how many… the prevalence of social media now versus even eight or 12 years ago, I think we will see an uptick between now and November 3rd. I haven't seen it to a great extent yet, but I would expect I will see more of it as we get closer to the election.

David Weisenfeld: And may even go past November 3rd, with some of the talk that's been going on for sure. And Robin, what about you? [0:21:18.1]

Robin Shea: You think?! No, I agree with Jon, except that I haven't had any questions about that yet. I do expect it to possibly escalate between now and the election, and maybe even afterward, but right now I have not had any questions about that.

David Weisenfeld: Okay, well in our final minute I wanted to get your thoughts just generally about employee social media use. And you don't have to limit it to the election. It could be the other issues that you're seeing with it. But just a final thought that you'd like to share that might help HR professionals as they grapple with these issues. And Robin, I'll start with you on this one. [0:22:01.2]

Robin Shea: First off, I think employers need to be looking again at… I think their general philosophy needs to be, "We are pro-letting employees express themselves on their personal social media account." And as we know, I feel differently if it's an employer social media account.

But in looking at whether you should take action against somebody based on what they posted, I would look at:

  • "Did they hold themselves out as representing the company?
  • Are they posting anything that could damage the employer's reputation?
  • Is the social media post harassing or discriminatory in some way?
  • Is it a real, indisputable fringe group, like the KKK or the Nazis? (in which case, employer, do whatever you need to do)."

But as far as content that is generally in the mainstream, not hate speech, not hate groups, not a violation of any anti-discrimination laws, I think employers just need to make sure they're even-handed. And if their company has a political philosophy one way or the other, either way, be sure they're not being too hard on the people who may disagree with their views.

And you know, except for that really extreme fringe stuff, I would say don't impose content restrictions or say, "If you're a Democrat we hate you and you're going to be fired for whatever you post, but if you're a Republican we love you and you can do whatever you want." Or vice versa.

I've unfortunately seen some employers who did make those distinctions from both sides, and I think employers need to try to avoid doing that as long as the employees don't overstep their bounds with what they're posting.

David Weisenfeld: And Jon, I'll let you have the last word. [0:24:04.9]

Jonathan Hyman: Just to kind of dovetail off of what Robin said, I think the employment relationship above everything else is a relationship of trust. And if that trust breaks down I think the relationship is broken, and sometimes it's irrevocably, and usually is irrevocably broken between the employer and the employee.

And I think employers, when they get too heavy-handed with this stuff, or too draconian, I think they run the risk of their employees perceiving them as Big Brother. And I think when that happens, I think the trust relationship is severed, and that's a trust that is difficult, if not impossible, for the employer to regain.

So employers, I think, need to be careful to… you want to take seriously these issues. You have a legal obligation not to allow, condone, tolerate discrimination, harassment. You have an obligation to your company to protect the company's image and brand, and the company's value. But after that, I think an employer runs a risk when they come at this with too heavy of a hand because I think they really do risk their employees perceiving them as, you know, too Big Brother-y, which I think risks severely, or potentially even irreparably, damaging the relationship between the company and its employees.

David Weisenfeld: Okay. Jon Hyman and Robin Shea are both not only long-time employment attorneys, but accomplished bloggers on a host of workplace issues, and I encourage you to check both of their blogs out.

Jon practices with Meyers Roman in Cleveland, site of the first presidential debate. And Robin is with Constangy, Brooks, Smith & Prophete in Winston-Salem, North Carolina. Jon and Robin, so great to have you on, and we've appreciated your insights. [0:25:58.4]

Jonathan Hyman: Thank you so much.

Robin Shea: Thank you, David.

David Weisenfeld: I'm David Weisenfeld. Thanks for listening. Continue checking our website regularly for more podcasts on key employment topics, including Back-To-School Leave Issues Bedeviling Employers and Courageous Workplace Conversations About Racial Inequality.

The opinions expressed in this program do not represent legal advice, nor should they necessarily be taken as the views of XpertHR or its employees. XpertHR.com is published by Reed Business Information, and is proudly partnered with LexisNexis.

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