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Dilemma of the Month: Speaking Freely on Social Media

Back Q&A Feb 8, 2018 By Suzanne Lucas
I have a client who recently threatened to quit working with us after seeing politically-charged posts she deemed offensive on one of my account manager’s social media accounts. I’ve asked the employee not to let this happen again, but he countered that we have no policy in place (which is true), and furthermore, these are his personal accounts and he is entitled to free speech. How can I deal with this situation and prevent another incident from happening in the future?

First of all, unless you work for a state-sponsored organization (like a university), your employees don’t have free speech rights when it comes to their jobs. The First Amendment applies to governments, not individuals. Typically, a company can place limits on what employees do or say.

However, there are some things employees do have the right to talk about – working conditions and wages, for instance. You’ll run into trouble if you try to punish an employee for sharing her salary with a coworker, for instance, or if you try to tell employees to stop talking about starting a union. In most states, that’s about it.

Politics, however, have special status in California — the law protects individuals’ rights to political free speech. You can’t fire someone for expressing his or her political views. So, do you have to let your manager post politically-charged statements online, which may threaten your business? It’s a difficult situation for California businesses — you clearly don’t want clients driven away, but you also need to protect your employees’ rights to speak (and post on social media) about their political views.

Related: Don’t Wait to Create Social Media Guidelines

Related: Dilemma of the Month: Retracting a Job Offer

I spoke with California employment lawyer Ann Fromholz, owner and principal at Fromholz Law Firm, who explained there are some things you can do to prevent damage from your employee’s controversial views. First and foremost, you need a social media policy, as soon as possible. You can’t, of course, apply it retroactively, but you certainly can get one written and apply it going forward. While you should definitely have an employment attorney (not a general attorney) review your final policy, Fromholz recommends you consider the following points.

No personal social media on company time or company equipment. When employees are on the clock (or on your equipment), it’s perfectly reasonable to say employees can’t use their own social media. However, Fromholz cautions the need for consistency here. If you say no social media from work equipment, but then allow people to post pictures of their pets on Instagram or tweet about the latest movie, you can’t turn around and say, “but Jim, you have to be quiet on this political issue!” It’s all or nothing.

Require a company disclaimer. If the employee mentions he works for your company, then he needs to have a disclaimer that these views are his and his alone, and do not reflect the company views. Remember, platforms like Facebook encourage people to identify their company in their profile, so this may be more important than you think.

All confidentiality rules still apply. Fromholz points out even if social media is being shared only with  “friends,” that doesn’t mean it remains confidential. Only authorized people can release certain information about the company.

If it’s against company rules or the law in real life, it’s against the rules for social media. So, if your employee is talking about robbing a bank, that is not protected free speech. Additionally, you can prohibit employees from posting things that discriminate, retaliate and/or harass based on age, race, sex, religion, national origin or ancestry, as well as other protected categories, like pregnancy, sexual orientation and whistle blowers.

Employees can’t use the company logo in social media, nor can they use any other things that represent the company. If employees aren’t official representatives of the company, they shouldn’t give any indication that might lead someone to believe they are. Some people are proud of their job, and may display a logo or have a picture of themselves in a company-branded shirt. While this seems harmless, it can give the impression they speak for the company.

Of course, all of this doesn’t solve your immediate problem of an employee who has publicly posted his views that are vastly different than those of your client. It’s tempting to say to everyone, “Can we just for one minute forget about politics? We sell widgets here and they are decidedly apolitical, so who cares?” But, your client won’t like that and you could be violating the law by asking your employee to shut up on his own social media.

But, you can say nicely to your client, “California law requires us to respect our employees’ right to free speech about political views. I’m sure you understand, as your company has the same obligations.” It might solve the problem.

But do get a social media policy in place as soon as possible. The last thing you want is an employee posting political or other unsavory things online and clients thinking these views represent the company’s views. 

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