Post-Election 2024: Employee Social Media Use
Author: Brightmine Editorial Team
The 2024 election has been characterized by unprecedented changes that have come at a rapid clip. While November 5 is behind us, the country is still running hot. Social media sites like Facebook, Instagram, TikTok and X provide a platform for users to rapidly view and share opinions on both the candidates and the election itself. With tensions bubbling, online discourse often foregoes the civility that accompanies in-person discussions and sometimes can spill over into the workplace.
An employer must be prepared if it comes across employee social media activity relating to the 2024 election that may be considered incendiary or otherwise problematic. This resource focuses on key considerations related to employee social media use following the election.
Off-Duty Speech
The First Amendment right to free speech generally does not apply to private-sector employers, giving them broad latitude to monitor employee social media use during work time, subject to exceptions for protected concerted activity, as discussed below. On the other hand, an employer's options are limited when it comes to employees' conduct on their personal social media accounts during non-work time.
Social media platforms are feeding a flurry of political social media activity following the election. Employers must be well-versed in state and local laws governing their options when it comes to employees' personal social media use. For example, some state and local laws protect employees' off-duty conduct, including social media use, requiring employers to link the conduct to the job before taking disciplinary action. Other states safeguard employees' off-duty conduct related to their political views. In addition, while federal antidiscrimination laws do not directly protect political affiliation or speech, employers should tread carefully when employee speech involves a Title VII-protected characteristic (e.g., race, color, sex, religion, age, etc.).
Before disciplining an employee for social media activity during non-work time, employers must keep in mind that the speech content plays a key role. Generally, an employer may discipline an employee for posting violent or discriminatory speech or content. But an employer should avoid disciplining an employee for voicing an opinion that merely differs from the company's views or stated position on an issue.
For instance, discipline may be appropriate if a social media post promotes violence or targets a candidate's or voters' protected characteristics (e.g., age, race, sex or ethnicity), but a post that civilly expresses one's opinion on a loaded political issue in the context of the election (e.g., regarding abortion access or immigration), even if different than the company's views, might not warrant discipline.
Some experts advise employers to allow employees to express themselves freely, provided the employee's speech does not violate the law, paint the company in a negative light or harm the company's public reputation.
NLRA Protections
The National Labor Relations Act (NLRA) protects both union and nonunion employees' rights to engage in protected concerted activity, union organizing and other collective action regarding the terms and conditions of employment (e.g., wages, hours, working conditions), including social media communications. According to the 2023 Stericycle ruling, the National Labor Relations Board (NLRB) may find that a work rule, such as a social media rule, violates the NLRA if a worker "would reasonably construe" the rule to bar organizing or concerted activity.
A social media policy that makes clear to employees exactly what language is and is not allowed helps an employer follow the NLRA's standards and consistently enforce its social media work rules.
Social media posts about the election or the candidates may include remarks about the employee's working conditions. For example, an employee could post about a candidate's stance that would directly affect the company's policies on overtime or parental leave. The policy must be sufficiently clear to determine whether such a post runs afoul of the company's rules or if it is considered protected concerted activity.
Key Steps
The 2024 election cycle requires employers to closely examine their policies and procedures on employee social media use. As political divisiveness carries over to 2025, employers should consider the following action items:
Additional Resources
Election 2024: Top Workplace Issues for Employers
Post-Election 2024: Workplace Civility