Read part two of our look at EEO laws and NLRA protections around employees and political speech in the workplace.
Employee Use of Social Media to Engage in Political Speech
In today’s employment climate, employees are more likely to engage in political speech via social media platforms than in person. However, an employer disciplining an employee for a social media post may be exposed to liability.
At least 26 states have social media privacy laws that prohibit employers from accessing an employee’s non-public social media posts. At their core, these laws prohibit employers from requesting or requiring employees to grant access to their personal social media accounts; requesting or requiring employees to disclose the login information to their personal social media account; requesting or requiring employees to access their social media account in the employer’s presence; and requesting or requiring employees to accept a “friend request” from their employer.
Pursuant to these laws, any employer wishing to discipline an employee for a post on social media must first trace the origin of the post before taking any adverse action against the employee, to ensure that the employer did not obtain the post in violation of the law.
Therefore, employers are limited in how they can access an employee’s social media in these states. Any discipline that is issued as a result of improperly obtained social media posts would subject the employer to potential liability under these various laws.
Social media also amplifies an employer’s exposure to potential liability under EEO laws and the NLRA. With respect to the NLRA, taking action against an employee who posts on social media for the purpose of seeking “mutual aid or protection” may be unlawful. Even the mere maintenance of a social media policy that restricts employees’ Section 7 rights may violate the NLRA.16
In the EEO context, courts often focus on whether social media policies are enforced in an equitable way. For example, in Carney v. City of Dothan, 158 F. Supp. 3d 1263, 1282 (M.D. Ala. 2016), the court held that an employee’s discrimination claim failed because the employer demonstrated equitable enforcement of its social media policy.
Employee Voting Leave, Political Participation, and Off-Duty Conduct
Federal law does not require employers to give employees time off to vote, but a significant number of states and local jurisdictions have enacted laws enabling employees to vote during what would otherwise be work hours.
Whether an employee is entitled to take leave—and whether that leave is paid—varies greatly among states, and often depends on the specific hours that voting is conducted in a jurisdiction, as well as the employee’s work schedule.
Some states and local jurisdictions expressly prohibit employers from enforcing any rule or policy that prevents or forbids employees from engaging or participating in politics or from becoming a candidate for public office and carrying out the duties of that elected office.15 Some states also require employers to provide unpaid leave so employees can serve as elected officials.
In addition, some states have adopted laws regarding off-duty lawful conduct that make it unlawful for employers to discriminate against or discharge an employee for engaging in lawful conduct or for using lawful products while not on work premises during nonworking hours.
Next Week
We provide recommended practices for handling politics in the workplace..
Questions?
Do you have concerns about how to best deal with politics in the workplace? Contact us and let our Minnesota HR and legal experts help!
