Legal Clinic

Free Speech or Punishable Offense

Question:  Our company was just posted about by a disgruntled employee on a website that is geared toward publicizing and embarrassing employers. The posting says some very unnecessarily nasty and hurtful personal things about some of our supervisors, and we are considering reprimanding the poster but do not want to run afoul of any laws. Can we reprimand the poster, or would his posting be considered freedom of speech? 

Thursday, December 10, 2015
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Answer: In the digital age, many businesses are becoming increasingly concerned about the use of the Internet and social media outside of the workplace, and the legal and reputational risks associated with its misuse.  Because the extent to which an employer can legally take an adverse employment action based on an employee's off-duty Internet use varies across states, you must first consider the nature of the content posted and the laws of the jurisdiction in which your business operates to properly assess your options.

Before deciding what disciplinary action, if any, should be taken to reprimand an employee who posts harmful content to a public website, the company must evaluate whether the off-duty activity is protected by state and/or federal law. As a preliminary matter, most private sector employment is "at-will;" that is, an employee can voluntarily leave the organization or can be terminated for any reason or no reason at all. Likewise, an employee may also end employment for any reason. There are, however, several statutory exceptions to the "at-will" doctrine that should be considered before determining whether disciplinary action for an Internet posting could result in legal liability including, for example, rules that protect privacy, unionization and whistleblowing. Content posted through private password-protected social media accounts as opposed to public websites may be protected under various laws and regulations including, for example, the Fair Credit Reporting Act (15 USC §§ 1681 et seq.), the Stored Communications Act (18 U.S.C. § 2701), the Wiretap Act (18 U.S.C. § 2511) as well as state privacy laws, among others. For the purposes of this article, we are assuming that the posted content is publicly available and does not require social-media-account access or passwords.

  1. Privacy

In the realm of private employment, some states have "off-duty conduct" laws that prohibit employers from taking job-related action against employees for lawful conduct that occurs outside of the office/premises and during non-working time. While some statutes prohibit employers from taking adverse employment actions against employees based on specific conduct such as smoking, others have much broader provisions that may protect public Internet postings. In New York, for example, employers are prohibited from discharging an individual based on the "individual's legal recreational activities outside work hours, off of the employer's premises and without use of the employer's equipment or other property."  NY CLS Labor § 201-d. Similarly, in California, employers are prohibited from discharging an employee because the employee engaged in lawful conduct during nonworking hours away from the employer's premises. Cal. Lab. Code §§ 98.6(a), 98.6(c)(2)(A); see also 96(k) (describing specific lawful conduct).
To take an adverse employment action against an employee, these laws often require employers to demonstrate a nexus between the off-duty conduct and the employer's business interests or operations. For instance, North Dakota's off-duty conduct law prohibits an employer from terminating an employee based on lawful off-duty conduct "which is not in direct conflict with the essential business-related interests of the employer."  N.D. Cent. Code § 14-02.4-03 (2015).
Because these statutes vary greatly in scope and may change over time, it is important to maintain a working knowledge of state-specific off-duty conduct laws that may impact your business.

  1. Concerted Activity under the NLRA

Under the federal National Labor Relations Act, all employees have the right "to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection."  29 U.S.C. §157. These rights, known as "Section 7 rights," protect any activity (including speech) that involves an attempt to improve the terms and conditions of employment, including those that are through "channels outside the immediate employee-employer relationship." Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978) (protecting distribution of union newsletter to employees during non-working areas that included political speech).
Even an employer that is enforcing its own policies is not insulated from potential labor violations. The National Labor Relations Board ("NLRB" or "Board") will take an aggressive approach toward work rules and policies that are arguably "overly broad," or that might be interpreted to restrict employees in the exercise of protected, concerted activity. See e.g. Three D, LLC (Triple Play), 361 NLRB No. 31 (2014) (finding exchange among employees on Facebook criticizing business owners both professionally (alleging tax miscalculations) and personally was protected activity under Section 7 and ruling that employer's internal policy prohibiting "inappropriate discussions" violated the NLRA).
Recent guidance published by the NLRB demonstrates the breadth of the NLRA's coverage. See NLRB Memorandum GC 15-04, "Report of the General Counsel Concerning Employer Rules", March 18, 2015. In the Board's discussion of employer policies, the following provisions (though seemingly harmless) were found to be unlawful:

·         [B]e respectful to the company, other employees, customers, partners and competitors.

·         No [d]efamatory, libelous, slanderous or discriminatory comments about [the Company], its customers and/or competitors, its employees or management.

The Board explained that such policies are unlawfully overbroad, "since employees reasonably would construe them to ban protected criticism or protests regarding their supervisors, management or the employer in general."  Id. at 7.

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In enforcing these guidelines, the Board will consider any social media postings made on behalf of other employees or made with the object of inducing or preparing for group action to be "protected" under Section 7 of the NLRA – regardless of whether the employees are unionized or not.  Under the new guidance, personal attacks posted during non-working hours off the employer's premises – even offensive insults posted on a public website – may be considered protected activity if they are in some way connected to concerted activity, related to the terms and conditions of employment or alleged unfair labor practices.

  1. Whistleblowing

Under state and federal whistleblowing statutes, it is unlawful for an employer to retaliate against an employee through an adverse employment decision if the employee discloses (or threatens to disclose) employer activity to a governmental or public body that the employee reasonably believes violates a law, rule or regulation. See, e.g., Mich. Comp. Laws §15.362(2) (prohibiting employers from discharging, threatening or discriminating against an employee for reporting a suspected violation of a law, regulation or rule to a public body); N.H. Rev. Stat. Ann. § 275-E:2 (prohibiting adverse employment action where an employee, in good faith, reports a suspected violation of a law to a public body); N.J. Stat. Ann. § 34:19-3 (prohibiting retaliatory actions against an employee for disclosing or threatening to disclose to a supervisor or public body a reasonably believed violation of a law or regulation).
Notably, passive posting on a public website does not generally constitute "reporting" an alleged violation to a government agency for the purposes of whistleblowing statutes. If, however, the employee discloses perceived illegal conduct to a public body and posts similar complaints online, an employer may be subject to a claim of wrongful discharge or retaliation should the employer make an adverse employment decision based on the posted content.

  1. Employment Contracts

Finally, before taking any adverse action, it is important to review the language in your employment agreements. Even if there are no statutory prohibitions against disciplining an employee for their off-duty Internet use, the language in your employment contracts may hamper your ability to lawfully discipline or discharge an employee for their conduct. For instance, if your employment agreement states that the employee can only be terminated for "just cause" or is employed for a fixed duration, further analysis and consultation of your internal policies will be required.

Keisha-Ann G. Gray is a partner in Proskauer's labor and employment department, resident in the firm's New York office. Proskauer Associate Larissa R. Boz, resident in Proskauer's New York office, assisted with this article.


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