In today's hyper-connected world, understanding when employees are truly "off duty" is more complicated than ever—and the First Amendment shield might not be what you think it is, giving companies more leeway to act in its best interests.
Constitutional and Statutory Foundations
Many employees mistakenly believe that the First Amendment gives them broad protection to say whatever they want, wherever they want, without consequences. In reality, the First Amendment only restricts government action. It prohibits federal, state, and local governments from infringing on free speech rights, but it does not apply to private employers.
Courts have consistently held that private sector employees do not have a constitutional right to free speech in the workplace. As a result, private employers can discipline or terminate employees for speech they find objectionable—including comments made on social media, outside of work, or during off-duty hours—especially if that speech reflects poorly on the company or disrupts the work environment. This is true even when the speech would otherwise be protected in a political or public setting leaving employers uncertain of their legal rights when it comes to disciplining employees.
Federal Support of Employer Discipline
There are various federal laws that give employers clear legal action when violated. Statutes such as Title VII, ADA, ADEA, and Related Anti-Discrimination Laws primarily regulate conduct in the workplace, off-duty speech or conduct. These statutes support claims of off-duty speech, including social media activity, when the speech:
Federal Employer Cautions
Alternatively, Section 7 of the National Labor Relations Act (NLRA) protects employees' rights to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection."[1] The key consideration is whether the activity is concerted—that is, whether it involves, or is intended to involve, group action or benefit more than just the individual employee. Speech related to wages, hours, working conditions, and complaints made to management may be protected under Section 7. However, individual grievances, defamatory remarks, and knowingly or recklessly false statements are generally not protected.
If an employer disciplines or terminates an employee for protected concerted activity, the National Labor Relations Board (NLRB) may order various remedies such as reinstatement of the employee, backpay, posting of notice informing employees of their rights, and a recission of unlawful rules or policies.
State-Law Protections for Off-Duty Conduct
Several states have enacted "lawful off-duty conduct" laws that provide employees with greater protection for their conduct and speech outside of work. States such as California, New York, Colorado, Illinois, and North Dakota offer these protections, which generally shield off-duty behavior unless it creates a material conflict with the employer's business interests.[2] Ohio does not currently have a general "lawful off-duty conduct" statute.
Common Legal Claims That Employers Face
In the context of disciplining off duty conduct, employers may face various legal claims.
Wrongful Termination
A common claim employers face is wrongful termination. While most employment in the United States is "at-will," wrongful termination claims can arise where the employer's actions violate public policy, breach an implied contract, or are retaliatory in nature. Many states recognize a common-law claim for wrongful termination when an employee is fired for engaging in conduct that serves a recognized public interest such as voting, serving on a jury, reporting legal violations, or participating in investigations.
NLRA Violations
The NLRB protects employees (unionized and non-unionized) when engaging in concerted activity for mutual aid or protection. For example, employers may face liability for overbroad social media policies. This includes language protected by Section 7 but also protects against ambiguous language in an effort to avoid a chilling effect on protected activity.
Employer Best Practices to Comply with Federal Law and Protect the Company's Reputation
1. Draft Effective And Lawful Social Media Policies
Creating a social media policy that can be distributed to employees helps manage expectations and supports the company's decisions if any action is needed. Even if a social media policy is already in place, conducting a review of the policy to ensure they do not prohibit lawful concerted activity is a helpful practice.
When drafting, reviewing, or revising:
2. Invest In Training
Take time to ensure employees understand the company's expectations. This may include an express disclaimer that the policy does not prohibit protected concerted activity under the NLRA, nor restrict legally protected political or off-duty conduct under applicable state law. Consider language such as: "Nothing in this policy is intended to interfere with or discourage employees from engaging in lawful concerted activity, including the right to discuss wages, working conditions, or terms of employment."
In addition to training employees, companies should invest in training their managers to recognize when employee speech or complaints may be protected under the NLRA, even in a non-union context.
3. Investigate Social Media Incidents
When a concerning post surfaces, employers should act quickly but carefully. Missteps in the investigative process can undermine defensibility or escalate public controversy. This can be achieved by setting up effective internal protocols. These protocols may include:
4. Conduct Legal Review
Staying up to date with legal regulations surrounding this area of law is necessary. Additionally, conducting legal review of an employee's conduct may be necessary especially when NLRA implications are possible (concerted activity, organizing, etc.), state law protections (e.g., lawful off-duty conduct, political speech) may apply, or the situation involves a high-profile employee, ongoing litigation, or anticipated media coverage.
5. Avoid Prohibitions That Are Stricter Than Necessary
Prohibitions that tend to go too far in the social media space include:
6. Be Reasonable When Evaluating Employee Conduct
Be reasonable. Making your employees feel like they are always being watched and that their creative outlets have been stifled by their jobs leads to a negative workplace environment. Set reasonable expectations early on and apply proportionate discipline if necessary. Not every questionable post warrants termination. Instead, discipline should be measured, consistent, and supported by a defensible rationale.
What happens off the clock doesn't always stay off the radar. In today's hyper-connected world, an employee's private actions can quickly become a public matter—with real consequences for your organization. Responding with fairness, consistency, and a clear link to company values isn't just good policy—it's essential to protecting your culture, credibility, and the trust of your workforce.
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[1] 29 U.S.C.S. § 157
[2] Cal Lab Code § 98.6; N.Y. Lab. Law § 201-d (Consol.); Colo. Rev. Stat. § 24-34-402.5; 820 Ill. Comp. Stat. Ann. 55/5; N.D. Cent. Code § 14-02.4-03.