2016_04_05 social media

The advent of social media, such as Facebook, Twitter, and Instagram, has blurred the sometimes tenuous line between employees’ professional and private lives. Employers are still trying to figure out how to deal with their employees’ use of social media, both when their social media posts mention or relate to their employment and when they do not. As you might expect, any attempts by employers to restrict their employees’ online speech raises important constitutional concerns.

Free speech protections apply to social media as much as to any other form of communication; employees do not lose their First Amendment rights when they sign into Facebook. In Connecticut, there is a law that prohibits all Connecticut employers – public and private – from disciplining employees who exercise their free speech rights under the federal and state constitutions. It is also true, however, that employers have an interest in their employees’ online speech when that speech harms the employer’s business or impacts the employees’ ability to do their jobs.

In the private sector, the National Labor Relations Board (NLRB) has required several large and well-known employers (e.g., Wal-Mart, Costco, DirecTV) to revise their social media policies because they infringed on employees’ free speech rights by being too vague and/or overly broad. The NLRB has also addressed situations in which employees complain together about their jobs or employers on social media, and those employees (whether in a union or not) have generally been protected.

In the public sector, courts try to balance the competing interests of public employers in restricting their employees’ online speech and employees’ interests in expressing themselves and maintaining their privacy. School districts, for example, have disciplined educators (teachers and administrators) for their alleged inappropriate social media use, with several such cases in Connecticut. However, school districts present a unique case because of the danger of serious sexual misconduct that can result from, or be enabled by, private online contact between educators and students.

To what extent employers can restrict their employees’ speech on social media is a relatively new question that the law has not clearly answered yet. Until the law catches up to technology, employers should carefully craft policies or rules so as not to infringe on employees’ constitutional rights. Employees, for their part, should understand that the First Amendment is not an absolute protection for any online speech, and, further, should take steps to activate the privacy settings on their social media accounts (thereby limiting who can see their posts).

By: Meaghan Murphy

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