PUBLICATIONS

The interplay between protected speech and the workplace continues to leave employers scratching their heads as they strive to foster a productive workplace. With the advent of the age of social media, a conversation that at one time could have started and ended at the break room takes on a life of its own with a fresh batch of nuances. Employers may be wondering: what action may they take when an employee utilizes social media on personal time in a way that creates discord in the workplace? This article discusses the variety of legal issues that should be considered and provides insights for employers presented with such a situation, as making the wrong move can be costly.

In 2025, perhaps unsurprisingly, “once speech is posted on the internet, the speaker has virtually no control over its distribution, creating the possibility that it will reach a far broader audience far more quickly than speech disseminated in other ways.” Hussey v. City of Cambridge, No. 24-1279, at *27 (1st Cir. Aug. 15, 2025). Given this broad reach and the potential impact such comments can have on the workplace, regardless of whether the employees themselves identify their employer, employees may want to pause prior to posting, reposting, commenting, or “lik[ing]” another’s post. For employers, an employee’s deletion of a post or an attempt to make the post private will not necessarily eliminate a disruption in the workplace. By the time an employee takes such actions, the post may already have been shared with others or screenshotted, for instance.

But, just as employees typically should pause before they post, employers routinely should pause before they pursue a particular course of action like discipline. With such potentially high stakes, rather than make a hasty decision without consideration, it would be prudent for employers to conduct a fact-specific analysis and determine the next steps based on information that is as complete as possible under the circumstances. Content and context matter.

For employers, factors of which to be aware and to contemplate in the decision-making process, as appropriate, include:

LEGAL CONSIDERATIONS

Free Speech Protections

Federal Law

When issues related to employees’ speech arise, employers frequently face questions regarding the right to “free speech” or the “freedom of speech” found in the First Amendment. As Justice Alito opined in Matal v. Tam, 582 U.S. 218, 246 (2017), “[s]peech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’” (citation omitted). In Hussey v. City of Cambridge, 720 F. Supp. 3d 41, 56 (D. Mass. 2024), a federal district court in Massachusetts analyzed a police officer’s comments regarding a proposed police reform bill named after George Floyd under the balancing test first set out in the U.S. Supreme Court decision in Pickering v. Board of Education of Township High School District 205, Will County, Illinois, 391 U.S. 563 (1968), and recognized that “[o]ffensive speech can still be protected speech if an employer retaliates against the employee because of their objections to the content of that speech, rather than their concern for the speech’s impact on public functions,” but dismissed the case. (The First Circuit affirmed this decision in 2025. 149 F.4th 57 (1st Cir. 2025)).

But the First Amendment provides limited protections, restricting governmental intrusions on said freedom; freedom of speech is not an unfettered right. Even where an employer is public, the right to free speech does not include a right to incite imminent violence, for instance.[1] Further complicating the matter, as one court stated, “[i]t is notoriously difficult to determine when speech descends from political speech—even impassioned speech—to incitement” of violence – the latter of which is not protected under the First Amendment. Wells v. Rice, 692 F. Supp. 3d 735, 742 (E.D. Ky. 2023).

State Law

In the private employment context, the First Amendment alone does not limit a private employer from terminating an employee’s employment for speech. Thus, employees should be aware that, without First Amendment or other protections, there may be consequences for their speech.

At least one state, however, provides some protections rooted in the First Amendment. Section 31-51q of the General Statutes of Connecticut states that employers who discipline or discharge an employee or threaten to do so “on account of” the employee’s exercise of First Amendment rights or specified rights under the state’s constitution, “provided such activity does not substantially or materially interfere with the employee's bona fide job performance or the working relationship between the employee and the employer,” “shall be liable to such employee for the full amount of gross loss of wages or compensation, with costs and such reasonable attorney's fees as may be allowed by the court.” 

Protected Concerted Activity

Regardless of whether the workplace is unionized, the National Labor Relations Act (NLRA) gives “employee[s],” as that term is defined in the NLRA, “the right to join together with coworkers to improve” their “lives at work - including joining together in cyberspace, such as on Facebook,” as stated on the National Labor Relations Board’s (NLRB’s) website. The NLRB began explicitly reviewing this right in the context of social media almost fifteen years ago. As a result, employee speech that can be considered “concerted activit[y]” under section 7 of the NLRA may be protected speech under that law, restricting actions employers may take regarding such speech. 

Privacy Concerns and Limits on Social Media Access

Over half of the states have enacted laws that limit employers’ access to employees’ social media accounts. (New York’s law only became effective in March of 2024.) The restrictions and other features in these laws vary by state (e.g., some prohibit even requesting an employee’s username or requiring an employee to “friend” a supervisor or to allow the employer to “shoulder surf” while the employee logs into the employee’s social media account). Some of these laws identify employer actions that are not within their scope (e.g., New York excludes access from its law’s coverage when the access occurs under certain circumstances in the context of an investigation and when the review is necessary to comply with “a duty” “to monitor or retain employee communications that is established under federal law” or by a self-regulatory organization (as defined), such as FINRA, in addition to other carved-out scenarios).

Prohibited Discrimination and Harassment

Discrimination Claims, Possible Comparators, and the Importance of Consistency

Depending on the circumstances, federal, state, and local laws that prohibit discrimination and harassment on the basis of protected characteristics may also be implicated. Employers should therefore consider their prior practice as part of their decision-making process. In cases challenging the termination of employment, employees have raised, for example, claims under Title VII of the Civil Rights Act of 1964, as amended, arguing they were treated less favorably than others because of their protected characteristic (i.e., race, color, sex, religion, or national origin under Title VII).

Harassment Claims

These laws prohibiting discrimination and harassment also could be triggered if the individual engaged via social media in behavior that is harassing on the basis of a characteristic protected under applicable law. See, e.g., Okonowsky v. Garland, 109 F.4th 1166, 1171 (9th Cir. 2024) (“We take this occasion to reaffirm that the totality of the circumstances in a Title VII sexually hostile work environment claim includes evidence of sexually harassing conduct, even if it does not expressly target the plaintiff, as well as evidence of non-sexual conduct directed at the plaintiff that a jury could find retaliatory or intimidating. We also reject the notion that only conduct that occurs inside the physical workplace can be actionable, especially in light of the ubiquity of social media and the ready use of it to harass and bully both inside and outside of the physical workplace.”). Significantly, states such as Massachusetts and New York expressly discuss virtual harassment in their guidance and model documents, respectively. 

Off-Duty Conduct Laws

Some states, including California, New York, and North Dakota, prohibit employers from discriminating against employees based on their employees’ lawful off-duty conduct. In New York, for example, employers are prohibited from discriminating “because of” an individual’s lawful “political activities” or “recreational activities” that the individual engages in “outside work hours,” off the employer’s premises, and without the employer’s property, with limited exceptions, such as when employee activity “creates a material conflict of interest related to the employer’s . . . proprietary or business interest.” Among other terms, the law defines “political activities” and “recreational activities.” In Utah, covered employers may not discriminate “for lawful expression or expressive activity outside of the workplace regarding the person’s religious, political, or personal convictions, including convictions about marriage, family, or sexuality, unless the expression or expressive activity is in direct conflict with the essential business-related interests of the employer.”

Non-Statutory Considerations

Where an employee is otherwise subject to at-will employment, employers generally may terminate employment for any lawful reason or no reason. Employers should determine whether any governing employment agreements necessitate an action(s), such as providing specific notice, before disciplining an employee, however. Cf. Tannous v. Cabrini Univ., No. CV 23-1115, 2024 WL 1998499, at *7 (E.D. Pa. May 6, 2024) (dismissing a breach of contract claim with prejudice after reviewing the wording in the controlling documents in a case where the plaintiff claimed his employment was unlawfully terminated after he was alleged to have made antisemitic posts).

CONSIDERATIONS SPECIFIC TO ELEMENTS OF SOCIAL MEDIA AND OTHER TECHNOLOGY

Other questions employers should consider include:

• Where emojis are involved, is the meaning of the displayed emoji clear, especially if the emoji has alternate meanings? Also, how does the appearance of the emoji differ between platforms?
• Has due diligence been performed to confirm the post’s source?
  • That is, has the employee’s profile been used in catfishing or been targeted with hacking?
  • Has artificial intelligence been utilized to create a deepfake in a profile that does not actually belong to the employee?
  • Are there factors that suggest that any electronic evidence has been fabricated?
• Has a thorough, fair investigation been conducted, as needed?

INDUSTRY-SPECIFIC AND ROLE-SPECIFIC CONSIDERATIONS

The potential importance of laws, rules, regulations, guidance, or opinions that are relevant to the employer’s industry or to the role should also be underscored. For those in the legal industry, including in-house counsel, an example of a possibly relevant resource is an ethics opinion. See, e.g., D.C. Bar Legal Ethics Op. 370 (2016) (opining that, regarding social media, “[c]aution should be exercised when stating positions on issues,” as a conflict of interest could be created inadvertently). In the financial services industry, FINRA’s website advises firms that they “must educate their personnel on the difference between personal and business uses of social media” and discusses related recordkeeping requirements. The industry may also be relevant in weighing the comments. See generally Gustilo v. Hennepin Healthcare Sys., Inc., No. 0:22-CV-00352-SRN-DJF, 2025 WL 2539116, at *16 (D. Minn. Sept. 4, 2025) (“With the jury’s findings informing the Court's analysis, the Court finds as a matter of law that [the defendant’s] interest, as an employer, in promoting the efficiency of the critical public services it performs as a safety net hospital outweighed Dr. Gustilo’s interests, as a citizen, in commenting upon matters of public concern.”).

OTHER CONSIDERATIONS

For a given organization, a host of other factors of which to be mindful might exist. Such factors could include the impact of social media speech on the employer’s reputation, employee morale, and customer/client goodwill.