Freedom of Speech vs. Cancel Culture?

What To Know About Constitutional Rights and Your Business

The phrase cancel culture has become ubiquitous over the last couple years. It strikes fear in the hearts of social media influencers and public figures everywhere. One post in poor taste or the unearthing of a years-old Tweet can bring a screeching halt to a politician’s campaign or rising artist’s rise to fame. So, what is an employer to do when an employee likes or shares an inflammatory article on Facebook or posts a Tik Tok with racially insensitive lyrics? Is the employee’s speech protected or can the company “cancel” that worker’s career? Below are a few considerations.

First Amendment

Are employees entitled to unencumbered freedom of speech at their work or professional organization? The short answer is No, the 1st amendment normally doesn’t apply to actions by private employers. Generally, a private company can discipline an employee for a problematic post without issue, as the First Amendment applies only to government action. This freedom may be limited if a collective bargaining agreement or individual employee contract prohibits the employer from firing based on online activity. 

National Labor Relations Act

Employers should consider if the speech they are seeking to punish is related to the terms and conditions of employment. Under the Act, employers cannot prevent employees from discussing things like their pay, benefits, or working conditions if such activity could be construed as "protected concerted" activity. So, where an individual employee’s tweet griping about the bad day she had at work is not likely protected, a Facebook group where current employees can share complaints about their supervisors may be. Last year, the NLRB changed its standard for determining whether employees were lawfully disciplined or discharged after making abusive or offensive statements—including profane, racist, and sexually unacceptable remarks—in the course of activity otherwise protected under the Act. Under the newly-applied Wright Line approach, the General Counsel must first prove that the employee’s protected activity was a motivating factor in the discipline. If that burden is met, the employer must then prove it would have taken the same action even in the absence of the protected activity, for example, by showing consistent discipline of other employees who engaged in similar abusive or offensive conduct. So, employers can feel better about taking corrective action when ugliness arises in relation to an employee’s complaints about the workplace. 

State Employee Privacy Laws

Some states have specifically legislated on the ability of employers to control employees’ social media. Nebraska, for example, prohibits an employer from: requiring or requesting an applicant or employee to provide their social media login information; requiring or requesting an applicant or employee to log in to their accounts in the presence of the employer; requiring an applicant or employee to add any contact to their network, including the employer; or taking adverse action against the applicant or employee related to the enumerated items. Fifteen other states have statutes which apply to employers. 

Lawful Activities Statutes

A handful of states have passed laws protecting employees from discipline for engaging in any lawful activity outside of work. While these laws are most commonly applied to marijuana use or an employee’s criminal history, the broad language has been used to provide protection for an employee’s social media activity. Employers should therefore be sure to remain up to date with their state’s legislation on the issue. 

Social Media Policy

Employer social media policies have been a hot button topic for several years now as the popularity of sites such as Facebook, Twitter, Instagram, and others has grown exponentially. Some companies have a strict no-personal-use policy while employees are on the clock or using company property, while others encourage their employees to be active—but act responsibly—on social media.

No matter what the company’s policy, there seems to be a common thread: when an employee posts something to any social media outlet, whether on or off the clock, they should either 1) make no reference to the company in any capacity, or 2) if they do reference the company, make it known that the post is strictly their own personal view and does not necessarily reflect the company’s view on the topic.

Employees should also be encouraged to exercise good judgment in what they post, whether it be company-related or personal and be reminded to never post anything that could be construed as racist or defamatory. Make sure employees understand that they will be held responsible if they violate company policy for what they post on social media outlets. Consider providing refresher training on the company’s social media policy in light of the plethora of recent cancel culture incidents. Additionally, even though it should go without saying, include in the policy that no proprietary or confidential information is allowed to be posted.