RPJ Partners Jill Kahn Marshall and Deena R. Merlen Published in Fast Company

Employees’ personal social media accounts are often open for all to see.  Employers may discipline or even terminate an employee whose viewpoints or statements are construed as offensive, harassing, or discriminatory. Whether such actions could land the employer in legal trouble is an increasingly perilous minefield.

While the First Amendment of the United States Constitution protects most speech from regulation by the government (with certain exceptions, such as speech that imminently incites violence), its protections do not apply to private institutions, such as employers in the private sector. So, while individuals generally have a Constitutional right to peacefully express their views without government interference, private employees do not have the equivalent right in the workplace. A private sector employer can fire an employee in response to the employee’s political activities or other speech without violating the employee’s First Amendment rights.

However, some states and municipalities have enacted laws that afford protections to employees who engage in political activity or other lawful off-duty conduct. Before terminating or taking other disciplinary measures against an employee over their social media posting, an employer should consider whether the posting is protected under such a law.

Hence, for example, Candice Mumma sued her employer under a Connecticut law after she was fired over a social media post. Mumma, a conservative Christian woman in Connecticut, was fired after posting a meme on Facebook with the heading, “No Wonder Liberals Are So Confused,” under which appeared photographs of eight different political and cultural figures, each with a single-word caption such as the word “Indian” under a photograph of Senator Elizabeth Warren and the word “woman” under a photograph of Caitlyn Jenner.

After she was fired, Mumma sued her employer for violating her rights under Section 31-51q of the Connecticut General Statutes. (See Mumma v. Pathway Vet Alliance, LLC, 648 F. Supp. 3d 373 D. Conn. 2023). Section 31-51q prohibits employers from discharging or disciplining employees for the exercise of their rights under the First Amendment and similar provisions in the state’s constitution, “provided such activity does not substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and the employer.”

In another example, Dr. Benjamin Neel sued his employer, NYU Langone Health, under a New York law after he was fired from his position as the director of its cancer center for reposting anti-Hamas messages on social media that included caricatures of Arab people, as well as a message that questioned Hamas’s reporting of the death toll in Gaza. (See Neel v. New York University, Index No. 655743/2023, NYSCEF No. 1 Sup. Ct. N.Y. Cnty. Nov. 16, 2023).

Dr. Neel contended that the termination violated his rights under New York Labor Law § 201-d, which protects employees’ political activities, defined as “running for public office, campaigning for a candidate for public office, or participating in fund-raising activities for the benefit of a candidate, political party or political advocacy group.” To be protected under New York Labor Law § 201-d, such activities must be legal, take place outside working hours and off the employer’s premises, and not utilize the employer’s equipment.

Dr. Neel also claimed that by firing him, his employer violated his rights under the New York State Human Rights Law and New York City Human Rights Law, which prohibit discrimination based on religion (among other things), because the posts in question were in furtherance of his Jewish identity.

As this case illustrates, when employers take action based on political discourse, they must also consider how such discourse aligns with an employee’s identity, and how such views are being treated compared to those of a different group.

Since Dr. Neel’s termination, New York State has enacted a new law, New York Labor Law § 201-i, which prohibits employers from forcing employees to provide them with access to their personal social media accounts, with certain exceptions (such as an employer-provided business account or to comply with legal obligations). Although employers will continue to be able to access any social media content that is publicly available—and to react accordingly—the new law may encourage employees to make public accounts private, expressing their views to a closer circle than before.

While keeping social media posts private may offer employees some protection against adverse employment action, many people take to social media specifically to express their views to as wide an audience as possible, seeking to advocate, mobilize, effect change, and have an impact. The law’s protections do not ultimately apply where a private post is accessible to coworkers offended by the content.

In light of these minefields, employers are encouraged to have clear social media policies that set appropriate boundaries and expectations for employees ahead of time, rather than wait to address a controversial post during a heated controversy.  If an employee posts potentially offensive content anyway, employers may need to weigh whether the posting is political speech, whether it is protected under applicable law, whether it is bigoted or harassing speech that violates company policies, and whether the posting arguably creates a hostile work environment in violation of the rights of other employees.

Employers must also be careful to be consistent with their actions, so they don’t appear to favor one group’s point of view over another. (So long as both viewpoints are considered within the bounds of civil discourse—a murky category in and of itself these days.) Such favoritism can be construed as bias toward a particular group, leading to employee claims for illegal discriminatory behavior.

In these increasingly polarized times, where individuals use social media and other public platforms to express their political views, the interaction of political speech and the workplace is poised to grow increasingly complex.

Employers must toe the line between protected employee activity and protecting corporate reputations. They must also be wary of overstepping boundaries with employees’ private lives. Employees in turn must be aware that job protection in the face of controversial public speech is not a Constitutional right. Courts’ and legislatures’ reactions will continue to be instructive as our deeply divided country enters the contentious 2024 presidential election cycle.

This article is intended as a general discussion of these issues only and is not to be considered legal advice or relied upon. For more information, please contact RPJ Partner Jill Kahn Marshall, who counsels individuals and corporations in the areas of employment law, litigation and dispute resolution, and healthcare or RPJ Partner Deena R. Merlen, who counsels clients in areas of employment and labor law, intellectual property, media and entertainment, general business law, commercial transactions and dispute resolution. Ms. Marshall is admitted to practice law in New York and Massachusetts, as well as the District Courts for Massachusetts and the Southern and Eastern Districts of New York. Ms. Merlen is admitted to practice law in Connecticut and New York.