By: Andrew Will, Law Clerk (2021 J.D. Candidate) and Adam Konstas, Esquire
Grappling with economic lulls and government restrictions, many businesses have struggled to compete during the pandemic. Making matters worse, political unrest has increased the prevalence of divisive off-duty employee conduct. Social media and work-from-home policies have blurred the line between public and private life. In a time where Facebook posts range from family photos and funny cat videos to expressions of strong opinions on political and social issues and even evidence of attempted insurrection, employers must know their rights or face harm to their reputation.
Employees of private-sector employers may believe that the First Amendment protects their out-of-office activities or posts. This is a common misconception. While people are often quick to assert their “free speech” rights under the First Amendment, the First Amendment only applies to government action. With few exceptions, private employers in Maryland may terminate employees at will. When an employee engages in conduct detrimental to the employer’s business reputation, such as posting racist images or storming the US Capitol, they may subject the employee to discipline or termination. Freedom of speech does not guarantee freedom from consequences.
But imagine you’ve received reports about an employee’s alleged incendiary, divisive, and hair-raising off-duty conduct. Perhaps they’ve made inflammatory comments online and their profile is affiliated with your business. Or worse, they’ve called for violence in a public video and they list your business as their employer and perhaps they are even wearing T-shirt with your company logo. What should you do?
When considering disciplinary action, an employer should first take note of any state or local laws that may apply. Some states, including California, New York, North Dakota, and Colorado, have passed laws protecting employees for lawful off-duty conduct—like attending rallies or protests. Other states, like South Carolina and Connecticut, even extended First Amendment protections to private speech. In other words, some states protect an employee’s right to lawfully protest or make offensive—but legal—statements.
Most states, including Maryland, do not offer these protections. Employers can discipline or terminate employees whose off-duty conduct reflects poorly on the company, or whose actions clash with a company ethos.
Finally, the National Labor Relations Act (NLRA) may also protect an employee’s off-duty actions or posts if they are part of a concerted effort to improve wages, benefits, or working conditions (i.e., protected and concerted activities under Section 7 of the NLRA). Under the NLRA, posts advocating for improved pay or paid leave may be protected, while posts simply insulting your boss’s personal appearance and using profanity may not. Likewise, a run-of-the-mill Instagram post supporting the Black Lives Matter movement may not be protected, but a Tweet raising concerns about diversity in the office could be. Clearly, the lines are blurry. A word of warning, however: disciplining an employee for their opinion, though not protected, could result in negative publicity and harm the business’s reputation.
Contrary to popular belief, employers should also note that the NLRA applies to unionized and non-unionized workforces alike. While the last four years saw a more relaxed treatment of the NLRA, we can expect a more employee-protective approach under the Biden administration. With this in mind, it is still best to be thoughtful, thorough, and proactive in protecting your company’s brand.
If you believe an employee’s social media posts or off-duty conduct could warrant termination, quickly confirm the legitimacy of the claim. Insensitive posts often go viral before an employer has time to react or the employee time to delete. Even a quickly-deleted post can be saved and spread across numerous platforms.
Accordingly, employers should be proactive in preventing association with offensive or even criminal conduct. While many businesses have transitioned to remote work indefinitely, your company should maintain some form of a social media policy to help guide employee conduct. As an employer, you should remind employees that company anti-harassment or anti-discrimination policies still apply while working from home.
Because laws vary in scope across states, employers with a multi-state presence should take care when drafting off-duty conduct and social media policies. Consulting an attorney is always a safe bet.
Andrew Will is a Law Clerk with Pessin Katz Law, P.A. (PK Law) He is currently a 2021 J.D. Candidate at the University of Baltimore School of Law. He is the Associate Comments Editor of the University of Baltimore Law Review. He can be reached at 410-938-8702 and firstname.lastname@example.org .
Adam E. Konstas is a Member with the Firm with over seven years of experience representing local school boards, superintendents, private schools, colleges, and private sector employers before federal and state courts, and federal and state administrative agencies on a wide variety of matters, including employment discrimination claims brought under Title VII, the Americans with Disabilities Act, Family Medical Leave Act, Age Discrimination in Employment Act, as well as the Maryland Fair Employment Practices Act, teacher and student discipline cases, wrongful termination claims, wage and hour claims, and sexual harassment claims under both Title IX and Title VII. He can be reached at 410-339-5786 and email@example.com.