By:  Jacob Oslick

As we recently blogged about HERE, the National Labor Relations Board has taken a strong stand against what it considers overbroad social media policies.  Among other things, the NLRB contends that company social media policies risk chilling employees’ rights to discuss their wages or other “concerted protected activity.” 

The NLRB is not, however, the only concern companies must consider in drafting social media policies.  Two additional, related considerations come into play: the need to avoid harassment and discrimination in the work place, and state laws that protect off-duty conduct. 

Can Facebook Posts Tag An Employer With Liability? 

The first of these concerns is well-understood.  If an employee is accused of harassment or discrimination, the employee’s social media postings could be “fair game” for showing motive or animus.  Similarly, an employer can potentially face liability for co-employee harassment that takes place online, at least when the harassment seeps into the work environment.

The second of these concerns is more nuanced.  Many employers mistakenly believe that they can take adverse employment action against “at will” employees for any reason, provided it’s not for an employee’s race, sex, religion, “whistleblowing,” or other traditional protected classes.  But that’s not correct.  Roughly 30 states also limit an employer’s ability to discriminate based on different kinds of legal off-duty conduct, such as the employee’s political beliefs or tobacco use.  New York, for example, bars discrimination based on an employee’s “political activities,” “legal recreational activities” and the “legal use of consumable products.”  N.Y. Lab. Law § 201-d(2).  These laws can bring MySpace into the work place.

Politics, Religion, Taxes And Social Media: More Land Mines For Employers

Off-duty conduct and political activism claims are rarely asserted against private businesses.  But that trend is changing.  In a recent California case, for instance, an employer fired an employee for tearing down an employer-sponsored “Gay/Lesbian Pride” poster.  The employee claimed that he was really fired for expressing political beliefs against gay rights.  The Court found that the employee stated a claim for political activity discrimination under Cal. Lab. Code §§ 1101, 1102.  Decisions like this could prompt other employees to raise similar claims.

Social media can provide fertile ground for a disgruntled employee who wants to raise off-duty conduct or political activity claims, in two key ways: 

Dumb Twits On Twitter

First, just like with “traditional discrimination or harassment,” an employee’s postings about politics or other legal off-duty conduct (e.g., private gun ownership, smoking, gambling) could be used as evidence of animus in off-duty conduct litigation.  On this point, heated political commentary poses a particular concern.  For, as we witnessed last fall, the passions generated by a contested election can cause otherwise rational people to make disparaging, uncouth comments about their political opponents.  At the same time, these postings may themselves qualify for protection as legal, off-duty conduct that an employer cannot proscribe or take adverse action against. 

When You “Follow” Employees, They Follow You

Second, employers who actively monitor their employees’ social media postings may incur greater risk of off-duty conduct or political activism claims.  This is because active monitoring makes it much easier for employees to show that their employer knew about their political or lifestyle choices away from work.  In some cases, that could mean the difference between winning a motion to dismiss or settling a frivolous matter to avoid burdensome discovery.  

Increase Your Security Settings

The law on private sector claims based on off-duty conduct and political activism, including with regard to social media, continues to develop.  But it remains both sparse and highly state-specific.  So, if you are going to take disciplinary action against an employee for posting on social media, make sure that you’ve considered the relevant law in your jurisdiction.  Seyfarth’s Social Media and Privacy team members are available to help or answer questions you might have.