In recent years, the National Labor Relations Board (NLRB) and courts have found that social media posts might be protected even if they contain profanities or sound disloyal to the business. In certain states, employees have the right to engage in lawful conduct when they are off the clock, and that may impact how social media policies are crafted and implemented, he added.Įmployers must also be careful not to run afoul of the NLRA when disciplining employees for their social media activities, Hernández noted.Īn employee's posts on social media platforms might be considered protected concerted activity if the employee is discussing working conditions and other labor relations matters. "However, employees don't have the freedom or right to express racist, sexist or other discriminatory comments where such comments constitute violations of these laws," Olmsted noted.Įmployers should be mindful of how social media and policies affecting the use of social media interact with employee rights, Alexander said. Under various federal laws, employees may complain about harassment, discrimination, workplace safety violations and other issues. For example, workers are protected if they discuss their wages with each other, decide they're not being paid enough and seek raises from their employer.Įmployees also have the right to talk about possible unlawful conduct in the workplace. The NLRA protects employees' right to discuss the terms and conditions of their employment, said Steve Hernández, an attorney with Barnes & Thornburg in Los Angeles. This applies to workers in both union and nonunion settings.
For instance, private-sector employees have the right to engage in concerted activity under the National Labor Relations Act (NLRA).
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"Employees working in the private sector often that the constitutional First Amendment right to free speech applies to government employees but not employees working for businesses," said Christopher Olmsted, an attorney with Ogletree Deakins in San Diego.īut that doesn't mean that businesses can curb all employee speech. Thus, government employees do have some First Amendment protections. "The First Amendment does not apply to private actors, and employers are private actors." The First Amendment guarantees citizens the protection of free speech from intrusion by the federal government, explained Grant Alexander, an attorney with Alston & Bird in Los Angeles. Employees don't have a constitutional right to free speech at work, but employers still need to be aware of federal and state laws that do protect workers' speech in certain situations.
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