7 Questions to Consider Before Disciplining Employees for Social Media Posts

Quick Hits

• Employers may want to carefully consider several key questions before taking disciplinary action against employees for social media activity, particularly in light of potential legal protections and perception of fairness. 
• Clear and consistently enforced employee policies are important to avoid claims of discrimination or retaliation stemming from social media incidents.

If employee social media activity has come to management’s attention, here are seven questions to consider asking before taking disciplinary action over a post, reel, or the like.

1. Does the jurisdiction where an employer is located protect employee speech?

While employees often believe they are protected by “freedom of speech,” the First Amendment of the U.S. Constitution generally applies to government action and private-sector employers are generally not prohibited by the First Amendment from taking adverse employment action against employees for their speech or violation of company social media policies. However, some jurisdictions have laws that protect employees for off-duty political activities or outside speech that may protect employees at private companies for their social media activity or other online expressions short of direct threats or harassment directed at other employees, calls for violence, or hate speech in certain circumstances.

2. Is the planned disciplinary action consistent with past responses to similar conduct?

Employers may want to ensure they have updated social media policies that clearly state expectations for employees’ conduct online or notify them of the potential for disciplinary action if their speech harms the employer’s business or reputation. However, employers may want to evaluate how the policy has been enforced in the past prior to administering new discipline. Inconsistent application of such policies may lead to claims of discrimination or retaliation, regardless of the original conduct.

3. Will other employees perceive the action as fair and proportionate?

Not every code of conduct violation may warrant termination of employment. Disproportionate action or action that is seen as overly punitive could harm employees’ perception of fairness and negatively impact employee morale. Employers may want to consider the specific social media messages, their context, and how other employees will respond if they learn of the disciplinary response before taking action.

4. Do the company’s policies clearly prohibit the conduct in question?

The company’s legal defense may be stronger if its expectations were transparently communicated to employees before any incident occurred. Again, clear policies that specify expectations for employees’ conduct online or notify them of the potential for disciplinary action for messages that harm the employers’ reputation or business can be important in preventing such conduct from occurring or in defending against potential discrimination or related claims.

5. How will the company’s response impact the organization’s brand?

While protecting one’s business and other employees is crucial, public perception matters. Just as a response that is viewed as condoning misconduct can draw attention, an overly aggressive response could draw significant criticism. Where an employer’s disciplinary response may be the subject of the next viral content or news headline, it may be important to consider how the public will react.

6. Is the employee’s social media activity connected to work-related issues?

Employers may want to further note that employee social media activity concerning wages, benefits, or working conditions may be considered ‘protected concerted activity’ under the National Labor Relations Act (NLRA). Disciplinary action for such activity could be unlawful, meaning it is vital for employers to assess this potential link carefully.

7. Is the alleged social media activity authentic?

Emerging artificial intelligence (AI) and other technologies are making it easier for people to falsify or fabricate content to make it look like an employee said or did something that the employee did not actually say or do. It may be necessary for employers to investigate whether social media activity in question is indeed legitimate before taking adverse employment action.  

Next Steps

This list provides a solid starting point for navigating complex social media situations, but it is certainly not exhaustive.

Ogletree Deakins will continue to monitor developments and will provide updates on the Employee Engagement and Employment Law blogs as additional information becomes available.

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