May Employers Act Against Employees for What They Say Off the Clock and Away from Work?

First Amendment Primer

The U.S. Constitution provides that “Congress shall make no law … abridging the freedom of speech…” That means that Congress is prohibited from imposing limitations on free speech. With the passage of the Fourteenth Amendment, that prohibition was extended to state governments. Accordingly, private employers can take action against employees and applicants based on statements (including social media posts), even those made outside of work, without running afoul of the U.S. Constitution. In fact, employers often cite in support of such action the need to curtail workplace drama, mitigate negative media coverage, and public relations concerns.

Legally Protected Off-Duty Speech

However, it must also be noted that certain types of employee speech, even off the clock, are legally protected, including as to private employers. Be mindful that when an employee files a complaint with OSHA or raises a concern to a manager about what the employee reasonably believes may be unlawful harassment, that employee has engaged in a protected activity, and adverse action following such engagement may be viewed as unlawfully retaliatory.

Section 7 of the National Labor Relations Act (NLRA)

Also, remember that Section 7 of the NLRA protects rank-and-file employees who engage in protected concerted activity for their mutual aid and protection.

State and Local Protections

Still further, some state or local laws may provide employment protections to private employees for certain types of off-duty speech and assembly.

Contractual Protections

Finally, a collective bargaining agreement or employee handbook terms might provide employee protections beyond those in applicable law. Those are the big things private employers need to keep in mind before making an employment decision where the employee’s off-duty speech, protest, or activity is a factor.

Need Help

If your organization is navigating complex employee speech issues or considering disciplinary action related to off-duty conduct, we can help. Our team provides practical, legally grounded guidance tailored to your workplace. Contact us today to schedule a consultation or learn more about our HR compliance services.

FAQs

Q. What is Section 7 of the NLRA?
A. Section 7 of the National Labor Relations Act protects employees’ rights to organize, bargain collectively, and engage in concerted activities for mutual aid or protection. This includes actions like discussing workplace issues, signing petitions, or posting on social media about working conditions – even outside of work hours. Employers may not interfere with or retaliate against employees for exercising these rights.

Q. Can I fire an employee for a controversial social media post made outside of work?
A. Yes, in many cases – especially if you’re a private employer. However, you must ensure the post doesn’t fall under protected categories like whistleblowing, concerted activity, or rights granted under state law.

Q. What counts as “protected concerted activity”?
A. This refers to employees acting together to improve working conditions or wages. Even off-duty discussions or online posts can qualify if they relate to mutual workplace concerns.

Q. Are public employers subject to different rules?
A. Yes. Public employers are bound by constitutional protections, including the First Amendment, and must tread more carefully when disciplining employees for speech.

Q. Should I include off-duty conduct policies in my employee handbook?
A. Absolutely. Clear policies help set expectations and protect your organization. Just be sure they’re legally compliant and reviewed regularly.