The recent demonstrations around the country have been of considerable interest to our nonprofit’s staff. We encourage open discussions of the issues, and most of the discussions have been courteous and respectful of everyone’s views. One of our employees, who was rather quiet during these conversations, was asked what he thought about these issues and he just said, “Check out my Facebook page.”
When someone did check it out, they were horrified to see several racist images and profanity-laced references to protesters. On his Facebook page, the employee made no secret of the fact that he was one of our employees. One of our community partners called us to object to this post and asked us what we are going to do about it.
So now we ask, what can we do about this?
Intolerant of Intolerance
You are experiencing an issue many employers are having to resolve, given the recent protests and demonstrations over race relations and policing in the United States. As you might expect, many people have taken to their social media accounts and made their thoughts about these events known to their viewing audience. The tone of these posts have run the gamut from thoughtful and reasonable to outright offensive, abusive, and hateful.
Employers of the individuals who post their views have an understandable interest in what these posts say, especially if an employee’s post creates the impression that these views are shared by the employer.
In the last several weeks, there have been several high-profile and immediate firings for expressions that were not “reasonable or thoughtful” but that clearly crossed over instead into hate speech.
Here are just a few examples:
- An employee of NBC who had worked on several police-themed shows was fired for a Facebook post captioned “Curfew…” in which he’s shown holding a rifle on his front porch and another post full of expletives in which he threatens to shoot looters who come near his home.
- A longtime announcer for the Sacramento Kings was fired from his talk radio job, and he subsequently resigned from the team’s broadcast crew after tweeting, among other things, “ALL LIVES MATTER.”
- The principal trombonist from the Austin Symphony Orchestra was let go after a string of Facebook comments, including one in which she said Black protesters “deserve what they get.”
- Fender Musical Instruments summarily fired a longtime employee and master guitar builder for allegedly posting a very graphic and offensive image about “how to handle protesters.”
Regardless of where in the tangle of issues a particular employer falls, such expressions of hate and intolerance are inconsistent with most employers’ zero-tolerance policies that require employees to treat everyone with dignity and respect. In these situations, the terminations were appropriate and well-justified. However, when confronted with objectionable comments posted by employees, employers should carefully take stock of the situation before taking action.
Does the First Amendment Protect Such Conduct?
While most of us are aware that the First Amendment of the United States Constitution provides broad protection of a person’s right to express themselves about public affairs, it is important to understand that First Amendment protection applies only to government interference with this right of free speech and expression.
The terminations conducted by the private employers described above would, therefore, not violate the First Amendment rights of those employees.
Other Risks to Consider in Disciplining Employees for Hate Speech Postings
Although not bound by the First Amendment, employers do face other restrictions. It is important to understand these before taking action against employees posting objectionable content on social media:
- Posting (even negatively) about work conditions is protected. The National Labor Relations Board (NLRB) has ruled that employees have a right to use social media to communicate with other employees about employment-related matters, including the terms and conditions of their employment. This ruling applies to employees of both union and non-union employers. This is a broad protection of speech or other expression about the employer or employment conditions, even if profane or “over the top.” However, if the communication does not involve the employer or the conditions of employment, and if it is hate speech, the employer may well be able to respond with disciplinary action.
- Some political postings are protected. Some states do place statutory limits on how far employers can curtail the right of political speech on social media or otherwise. For example, California Labor Code section 1101 prohibits employers from making, adopting, or enforcing any rule, regulation, or policy that forbids or controls, or tends to control, the political activities of their employees. What constitutes “political activity” is defined broadly and can include, for example, displaying campaign stickers, wearing armbands, advocating for union membership, or criticizing public officials. As a result, an employer’s actions in dealing with social media postings do present risk. However, the more egregiously inflammatory or abusive the posting, the more likely it goes beyond the protected realm of “political activity,” and so the employer can deal with the employee more decisively.
- Employees are protected against wrongful termination in violation of public policy. Along the same lines, many states have held that employers may not terminate an employee for a range of protected behavior, such as exercising a legal right or privilege or refusing to break the law. These states also hold that the public policy alleged to be violated must be based on either a statutory or a constitutional provision. There is the risk, then, that an employee fired in violation of their constitutional or statutory rights to free speech or political activity might be able to bring suit claiming that the termination was in violation of public policy.
- Off-duty conduct may also be protected. Many states also limit the ability of employers to take action against an employee for off-duty conduct. If the employee’s post either does not identify the employer or creates no impression of endorsement of the post by the employer, there might be a greater risk to the employer for taking disciplinary action if the employee posted on their own free time, while not working. Of course, if the offensive posting is made on the employer’s social media platform, the employer’s response can be more forceful.
Making the Decision Easier: Maintain a Clear and Detailed Social Media Policy
As with many workplace decisions, having a clear, detailed, and strongly-worded policy (here is a sample) will assist the employer in dealing an employee’s abusive and offensive social media, should such circumstances arise.
At a minimum, a solid social media policy should include:
- A statement that the policy does not intend to interfere with a person’s rights under the NLRB
- Restrictions on posting harassing and discriminatory content, and other material of a clear and overt offensive nature
- The requirement that employees express only their own individual opinions or views, never implying that these views reflect the views of the employer
- A prohibition against any employee linking their social media account to the employer’s social media accounts
- Clearly spelled-out consequences for violating the social media policy
In summary, it is important to remember that an employer should never take action against employees who express or post points of view that simply differ from the views of the supervisor, management, or the board of directors. However, when those posted viewpoints cross over into undeniable expressions of hate, bigotry, and intolerance, or encourage violence against anyone, any action the employer takes to deter and prevent those and future such expressions should be recognized as essential to the cultivation of values consistent with a sound and healthy workplace culture.
This column does not constitute legal advice.
Mike Bishop is a member of the State Bar of California and has been admitted to practice in a number of federal district courts in both California and Ohio. During his legal career, Mike worked for 32 years with a Sacramento law firm, where he focused on employment litigation in both state and federal courts. During that time, he defended employers in litigation. In 2016, he began his work as an Employment Risk Manager for the Nonprofits Insurance Alliance, assisting nonprofits in evaluating employment risks. Mike lives in Lakewood, Ohio, and is a graduate of the University of California, Davis, with a bachelor’s degree in political science, and a 1982 graduate of the University of the Pacific, McGeorge School of Law.