The recent spate of employee terminations resulting from social media posts after the killing of right-wing influencer Charlie Kirk raises questions about what liability such terminations might have for employers. The amount of an employer’s potential liability will be based on whether they are a private or public employer.
Background
While employees have been fired in the past over their social media posts, the response to Kirk’s killing has been unprecedented in part because of a website—the Charlie Kirk Data Foundation, which posted a searchable list of thousands of people accused of posting critical messages about Kirk.
The intensity of the focus on critical social media posts about Kirk created a new problem for employers and employees, especially after the U.S. president and vice president both demanded employees making such posts be fired.
Private-sector Employers
For private employers in most states, employees are considered “at will” and can be terminated for any reason, including making political statements. However, while employers can establish policies requiring a respectful workplace, the policies have to be balanced against employees’ rights. Under the National Labor Relations Act (NLRA), employees have a right to engage in “protected concerted activity”—which covers actions they take together or on behalf of their coworkers to improve wages, hours, and other terms and conditions of employment, whether in person or online, even if they are critical of management or politically charged.
Before terminating employees for postings on their social media, employers should ensure there is no applicable state law protecting employees’ private social media posts. While the First Amendment doesn’t protect employees of private employers, they might be protected by state or local laws that prohibit discrimination based on political affiliation, such as those in California and Colorado.
Many states also have laws prohibiting employers from terminating employees for off-duty activities that are lawful and unrelated to employment. The purpose of such laws is to provide a shield to employees who engage in activities personally distasteful to their employers but which are legal and unrelated to an employee’s job duties. If the off-duty activities aren’t in direct conflict with the employer’s business-related interests, they cannot be restricted. So before terminating an employee over politically sensitive remarks or posts, employers should ensure they can show the behavior would harm the business.
Public-sector Employers
Public-sector employers are covered by the First Amendment. An employee’s political speech may be protected by the First Amendment if it involves a matter of public concern or is made as a private citizen and does not unduly disrupt the employer’s operations.
However, the First Amendment is not absolute even for federal government employees, especially in this political atmosphere. Recently, a federal district court judge rejected the First Amendment argument by a former FBI agent fired for his text messages on his FBI phone disparaging President Trump. The judge said the FBI’s interest in avoiding the appearance of bias when investigating the president was greater than the agent’s First Amendment interest in expressing his opinion about political candidates.
Recommendations for Employers
With the controversy over posts about Charlie Kirk, all employers should review their current social media policies and ensure that all employees understand the potential consequences of even private posts in this politically fraught environment.
The social media policy should:
- Not be overbroad
- Restrict personal social media use during work hours
- Encourage professionalism and decorum, reminding employees that discriminatory, harassing, or offensive posts even outside work hours could lead to discipline
- Tie such policy to current company code of conduct
- Prohibit misrepresentation.