NFDA's Endorsed Provider partner SESCO Management Consultants has provided the following article for NFDA members. 

As more and more employees use social media as major communication tools, employers must know what they can and can’t do when it comes to disciplining or even terminating employees for their social media use. Employees going to social media to share their personal opinions on topics such as the assassination of Charlie Kirk has caused employers to consider where the “line” is as to how they can respond to protect the good name and reputation of their company. 

Whether employees post, comment, or otherwise engage in social media activity, employers can generally act on such conduct as they would if it occurred in the workplace. But there are several protections that may be available to an employee facing discipline for their postings. These include laws prohibiting harassment and violence, laws protecting whistleblowers, and employees who complain about workplace conditions.

Legal Considerations

• Private-sector and most non-profit employers are not bound by the First Amendment’s free speech protections, which only restrict government action.
• Several states – including California, Colorado, and New York – have statutes protecting employees from retaliation for lawful off-duty conduct. In addition, Connecticut. Louisiana, Minnesota, South Carolina, and Wyoming are among the states that specifically protect off-duty political activity. These laws may prevent employers from firing or disciplining employees for expressing their personal views unless those views have a clear, material impact on the business.
• Even without a directed state law, the federal National Labor Relations Act (NLRA) could also provide your employees with protection. If the social media use relates, even indirectly, to the employee’s terms and conditions of employment, it may qualify as protected “concerted activity.” This is especially true if the post touches on workplace issues shared by coworkers (e.g., wages, benefits, and working conditions as defined by the NLRA).

SESCO’s Guidance on What Employers Should and Cannot Include in Social Media Policy

What not to include:

• Prohibitions on work-related discussions: Employees have a legal right to discuss jobs, wages, working conditions, and other employment issues.
• Restrictions on social connections: Avoid language that limits employees from “friending” or connecting with coworkers online.
• Requests for private social media credentials: Do not require employees to share their account passwords.
• Bans on pay or benefits discussions: Preventing these conversations can violate labor laws.
• Prohibitions on media contact: While employees have the right to speak to the media, you can require them to specify what they say as individuals, not company representatives.

What to include:

• Clear examples of unacceptable behavior: Specify that hate speech, discrimination, bullying, retaliation, threats of violence or condoning acts of violence on social media platforms will not be tolerated and may result in disciplinary action up to and including termination.
• Provide practical, easy-to-understand rules that apply to employee behavior online:
  • Respect company values: Encourage employees to align their online conduct with the company’s values. Make sure the company’s values are known to them.
  • Update privacy settings: Employees must regularly review and update their social media privacy settings.
  • Do not share internal information: Prohibit posting confidential business information, financial details, or sensitive customer information.
  • Think before you post: Remind employees that posts can have personal and professional consequences.
• Comply with specific state laws.

NFDA’s Endorsed Provider partner, SESCO Management Consultants offers free or discounted access to a wide variety of information and services including free, unlimited telephone and email consultations, an employee handbook development checklist, compliance recommendations and more! For more information on NFDA’s partnership with SESCO and the services they can provide, please visit NFDA.org/EndorsedProviders.