After sharing a post condemning violence against Israelis, Benjamin Neel, director of the Laura and Isaac Perlmutter Cancer Center, was suspended and then fired by his employer, New York University, Neel claims in a complaint he filed in the New York State Supreme Court. Reports show NYU also suspended another one of its employees, Zaki Masoud, who took the opposite position of Neel by posting in support of Palestinians.

As employees use social media to comment on contentious issues like the Israel-Gaza conflict, employers have considerable legal leeway to protect their interests but how far they should go is another matter, employment law specialists say. 

“Employers have broad discretion to limit their employee’s use of social media,” Philip Berkowitz, a partner at Littler Mendelson, told Legal Dive. 

That discretion includes disciplining and even firing workers if they use social media in a way the employer feels would have a disruptive effect on the workplace, he said, while noting there are also important exceptions.

At-will employment

In the United States, most states follow at-will employment doctrine. That puts power in employers’ hands to take action that they don’t have in, say, Europe, where employers must fire for cause.

This means a private sector employer in the U.S. can sever the employment relationship at any time for any reason as long as the reason isn’t prohibited by law or contract. As a result, employers that find a social media post by an employee or job candidate offensive or controversial can terminate employment or rescind the offer, Berkowitz said. 

That might come as a surprise to many, says David Miklas, a Florida-based labor and employment law attorney. 

“Most employees mistakenly believe that they have some type of free speech rights where they can say or write whatever they want on social media,” Miklas told Legal Dive. But they don’t.  

That doesn’t employers’ right to take action is limitless. Employers can’t take adverse employment action against a worker based on their membership in a legally protected class, for example. Employees are protected from employment discrimination based on race, color, religion and national origin, among other protections. 

That can complicate employers’ actions if employees’ posts about something controversial, like the Israel-Hamas conflict, intersect with their rights in a protected class.  

That puts the onus on in-house counsel to create sufficient documentation to support a decision to fire someone not because they’re part of a protected class but because their social media activity risks the employer’s business interests, notwithstanding their inclusion in a protected class, the lawyers say. 

State and local law should also be considered. Many states and some local jurisdictions have their own protected-class employment-law restrictions. Some states, including big ones like California and New York, also have statutory protections for political activities, including the expression of political views.

Concerted activity

Concerted activity, which can involve social media use, is also protected. 

The National Labor Relations Act grants employees the right to form unions, which includes the right to engage in concerted activity that lays the groundwork for a possible unionization effort.

But concerted activity is a group activity. It only occurs when two or more employees work together to improve their employment terms and conditions. This can include activities such as talking about wages and benefits, circulating a petition, and talking to coworkers – even when online.

For this reason, a controversial employment-related post by an employee that’s outside the group context might not be protected, according to Paul Glover, a former federal trial attorney and vice president of a 15,000-member teamster union. 

The post has to be in the context of a group that’s attempting to form a union or otherwise sharing information on working conditions for it to be protected under a discrimination statute, Glover said.

Freedom of speech

When facing employer discipline, employees might claim a First Amendment right to publish or share social media postings.  

But the guarantee of freedom of speech doesn’t apply to the private sector. In an employment context, it applies only to public employees as part of their free-speech protection against government action, Miklas said. 

People often forget there’s no freedom of speech protection against private employer action, Glover said. 

Privacy

Employees can also argue that employers can’t control what they do in the privacy of their homes or when they use their own devices to post on social media sites, especially personal social media accounts. But that’s not necessarily the case, Glover said. 

Although some states limit what employers can do about employees’ outside-work activities – Colorado, for example, restricts employers’ right to fire someone for acting illegally on their own time – for the most part, employers have considerable latitude in what they can do, Glover said.   

“The employer has the right to terminate an employee for any type of post on social media, whether it's from the company's own equipment or the employee's own equipment,” he said.

Social media posts are public, not private, and employers are protective of their reputation and brand. They’re going to look at publicly available social media content, he said; there’s no privacy protection for that communication. If the employer doesn’t like the post, they can terminate the worker’s employment unless the posts were made in the context of some other protected activity. 

Can doesn’t mean should

Even if employers can fire employees for their posts, it remains a question whether they should, says Joseph Campagna, president of hrconsulting.com. 

Employers who fire over a post are “asking for a lawsuit,” he said. A better approach is to take what Campagna calls HR actions, like sensitivity training and coaching, or PR actions, like issuing a statement in response to a post that says the organization serves the public.

But some employers might feel compelled to act. An offensive post could be used as evidence of discrimination against the employer or otherwise damage the organization’s reputation. 

Or a post could be viewed as creating a hostile work environment, Miklas said. Title VII of the Civil Rights Act imposes obligations on employers not to allow a hostile work environment, and if an employee’s post offends other workers, Title VII concerns can be raised. 

Social media policy guidelines

One of the ways to prevent trouble is for employers to have clear social media policies, the specialists said.

Employers should have a written policy that is distributed and explained to employees, but most don’t do that, Glover said. As a result, employees are often caught by surprise when facing discipline for social media postings.

Miklas said employers should warn employees they can be disciplined for off-duty conduct that does not align with the employer’s values.

Glover said it’s not enough to include the policy in the employee handbook; people don’t read the handbook until something happens, he said. He suggested instead that employers have a face-to-face conversation about the social media policy and make sure that everyone understands it. The conversations should include examples, including extreme examples, of social media activity that causes trouble for employees.

“They don’t understand the restrictions. Everyone believes they have freedom of speech, but they don’t,” Glover said.

It’s also a best practice to have each employee sign an acknowledgment that they received and understand the policy.

Glover suggested the policy be in plain English, not legalese, and include restrictions on sharing confidential information or any information that could damage the employer’s reputation or that misrepresents one’s affiliation with the organization. There should also be a statement that the policy applies to posts on the company’s time and devices as well as during non-work hours and on personal devices.

Investigate first

If there is what an employer feels is a social media policy violation, before taking any adverse action it’s key for in-house counsel to conduct an investigation. 

Investigations can be done quickly, Miklas said. It might simply involve interviewing the people involved and confronting the person who's accused of abuse or violating the policy. An employer might have a screenshot of what was posted. Or the investigation may be as simple as confronting the person with the post and asking if the employee is responsible for it.

“There are situations where someone may fabricate a screenshot of a text message or a social media post,” Miklas said. “It wouldn't be fair to just assume it's accurate. You should, at the very least, confront the person to see if it is accurate before you take action.”

There might be instances where an employer can't take several weeks to do an investigation, but it still must act quickly, Miklas said.

“Things move pretty fast in the world of social media,” he said. 

In these cases, an employer might nevertheless move fast to terminate a worker’s employment or place them on leave to protect the business from getting hundreds of one-star reviews overnight – but the employer can also expect to be challenged over it.