On June 23, 2021, the Supreme Court of the United States issued its decision in Mahanoy Area School District v. B.L., No. 20-255 (2021), holding that a student’s off-campus social media posts critical of her school constituted free expression protected by the First Amendment of the United States Constitution.
Although the events giving rise to the decision involved a high school’s suspension of a student from the school’s junior varsity cheerleading squad following the student’s colorful social media postings criticizing the school for her non-selection for a varsity team, the case has relevance for public-sector and private employers that are increasingly called upon to determine whether employment terminations or other disciplinary actions taken in response to employee social media postings are justified.
Even when such postings do not directly identify an employee’s position or emphasize the employer’s identity, issues may arise when coworkers or customers demand action in response to employee postings that they regard as inconsistent with the values or image that an employer has sought to convey to internal stakeholders, external partners, and the community. As employees increasingly turn to social media to express their viewpoints about political issues, social justice concerns, and other topics, and as onetime private postings often go viral and become public with increasing speed, the task of balancing employee freedom with employer interests can require year-round attention.
Before embarking upon disciplinary action in response to employee expression, employers may wish to consider the following issues.
Is the entity a public-sector employer?
If so, the First Amendment’s freedom-of-speech protections apply, in addition to the protections of federal and state laws. While there are limitations to the breadth of the First Amendment’s protections for students and employees, educators and employers may not punish the authors of speech merely because of disagreement with the content or other characteristics of the message. Instead, something more in the way of evidence of substantial actual or potential disruption of operations generally must be shown to exist, at least when the author is an employee whose social media posts address matters of public concern.
On the other hand, social media postings that target particular individuals or immutable characteristics of groups represented in the workplace may be afforded less protection than postings that merely express “unpopular” opinions or criticize business decisions generally. As the Supreme Court concluded in Mahanoy Area School District, the student’s postings were protected by the First Amendment, in part because they “did not identify the school … or target any member of the school community with vulgar or abusive language.” Arguably, a similar conclusion would apply to comparable speech by a public-sector employee.
Is the expression related to the terms and conditions of employment?
Employers in the private sector may wish to be mindful of the potential application of the National Labor Relations Act (NLRA) to employee expression, regardless of whether the employee is represented by a union. In general, when employees speak on behalf of other employees on topics related to wages, hours, or other terms and conditions of employment, the speech may be protected by the NLRA. On March 31, 2021, the acting general counsel of the National Labor Relations Board issued a memorandum that stated in part that “employee activity regarding a variety of societal issues will be reviewed to determine if those actions constitute mutual aid or protection under Section 7 of the Act.” As a result, employers may wish to remain mindful that an incoming Board may take a more expansive view of political expression that is protected under the NLRA.
Did the expression occur in a jurisdiction that has enacted state or local laws shielding lawful conduct outside the workplace, protecting political affiliation, or prohibiting retaliation for engaging in political activity?
Several states have laws that protect political expression or constrain an employer’s ability to discipline employees for engaging in lawful off-duty conduct. As a practical matter, these laws may be applicable even if the employee expression is not protected by the First Amendment and even if the expression falls outside the purview of the NLRA. Accordingly, employers may wish to familiarize themselves with these laws when faced with an issue related to employee use of social media or other avenues for expressing opinions about political or social issues.
Is there an identifiable disruption associated with the expression or a nontrivial potential for such disruption?
Although complaints from coworkers or customers about an employee’s speech will often merit some form of an investigation, the mere fact of a complaint may not necessarily justify discharge or serious disciplinary consequences. Instead, employers may wish to consider whether the expression has caused an actual disruption of operations. In Mahanoy Area School District, the absence of evidence of “any serious decline in team morale—to the point where it could create a substantial interference in, or disruption of, the school’s efforts to maintain team cohesion” was held to weigh in favor of a finding that the speech was protected by the First Amendment. Even when the First Amendment does not apply, consideration of the extent of any actual disruption caused by the speech, and the availability of other options for addressing such disruption, may merit consideration in determining the appropriate response.
Does the expression violate any written workplace policies, and is the contemplated disciplinary action consistent with the organization’s past practices?
Employers may wish to remain mindful of the content of internal policies that may be relevant to employee expression, as well as their organizations’ practices related to enforcing or otherwise applying those policies to employee expression. Employees (and juries) expect employers to act fairly, communicate clearly about expectations, and engage in consistent and reasonable interpretation of existing policies. Thus, employers may want to consider their track records of enforcing any policies that arguably apply to employee expression, and ensure the existence of articulable reasons for responding more severely to certain postings. For example, the level of authority of an author of a posting may be a relevant consideration, as may be the extent of the impact of a posting on an employer’s operations.
As students and employees use the growing number of social media platforms with increasing frequency to express opinions on a range of topics, schools and employers will be called upon to determine how to respond to postings that garner attention beyond an author’s network of “friends” due to potential inconsistency with organizational values. Before responding with disciplinary action, it may be beneficial for employers to consider and evaluate applicable federal and state laws and analyze the totality of the circumstances to mitigate the risk of potential legal challenges. In addition, employers may wish to consider proactive measures to lessen the likelihood that employee postings will adversely impact workplace culture, including by adopting or updating social media policies, educating employees about the company’s expectations regarding conduct with appropriate frequency, connecting policies to workplace culture by investing the necessary time and resources to build a shared understanding of how postings may impact the workplace, and identifying acceptable ways of expressing disagreement and raising awareness about potentially concerning postings.