What’s Protected under the 1st Amendment?

Could this happen to you?  As reported by the New York Post, a Memphis employer found itself on the receiving end of a barrage of complaints after one of its employees was captured on social media wearing a racist t-shirt to the polls on Election Day.  The employer investigated and decided to terminate the employee.  For some, terminating the employee may seem like a foregone conclusion.  Others may be wary that terminating the employee may violate the employee’s First Amendment right to free speech.  How do you ensure that you comply with the law and protect your business reputation when it comes to your employees’ off duty activity-both on and off social media?


The First Amendment restricts government actors from prohibiting an individual’s free speech or expression.  It does not restrict private employers from defining what is and is not acceptable for employees to say, wear, or post on social media.  Federal law does restrict employers from taking adverse action against employees for certain conduct such as organizing, discussing their wages or other terms of employment, or taking other action in an attempt to effect change or end unfair working conditions.  And some states have laws prohibiting employers from discriminating against employees on the basis of the off duty use of lawful consumable products or political affiliation or activity.  Employers may have a legitimate interest in regulating what employees are doing, saying, and posting on social media while off the clock.  Certain actions and activities, such as those of the racist t-shirt-wearing employee, can seriously damage the employer’s brand and put the employer at risk of a discrimination or harassment lawsuit by coworkers, clients, and customers.


Enacting policies regarding employees’ personal social media accounts and determining whether to take adverse action against an employee for off duty activity can be a minefield.  Was the Memphis employer within its rights to terminate the employee seen wearing a racist t-shirt on social media? Yes.  Can you discipline an employee for tweeting a picture of himself drinking tequila or posing with an unpopular political candidate?  In many states, probably not.  Is it okay to demote a manager who likes another employee’s Facebook post stating that your company does not pay employees fairly?  This could be asking for trouble.


The attorneys at myHRcounsel are well-versed in federal labor law and state-specific off-duty conduct laws and have the experience and knowledge to create a social media policy that works for your company.