I have talked to a few employers over the years about an employee making racist statements on social media, but it is not a common question. This week I was interviewed twice about this topic. I thought it might be helpful to understand the decision-making process.
The first question is whether the employer is public-sector or private-sector. An employee of a public-sector or governmental employer is protected by the First Amendment. These employers must follow a specific decision-making process outlined by the Supreme Court requiring them to determine if the speech is a matter of public concern, which would be protected under the U.S. Constitution. This is a legal standard, and an understanding of case law is in order. For example, courts have ruled that “liking” a post is not protected speech, but speaking out about a local school board policy is.
If speech is not protected, then the employer need not consider First Amendment protections. If it is, the next consideration is whether the speech is disruptive to the employer’s operations. This is also a question requiring careful consideration of the facts.
Private-sector employers have no such freedom of speech concerns, but they still need to determine whether their actions are lawful. Some states, like Colorado and California, have legal off-duty conduct statutes, and more and more states prohibit employers from gathering information about an employee from their social media sites. In some cases, the National Labor Relations Act protects employees’ social media posts. All of these must be considered before making a determination. Depending on the jurisdiction, other laws might be implicated, as well. So, the short answer on what to do is use your membership and call us. We will walk you through all the legal considerations with this complicated question.