What Employers Should Know About Employee Social Media Use. What is Employee Speech?

Article by: Law Clerk, Briana Saucedo

Millions of people use social media every day, but what happens when an employee

posts on social media? Are they always protected by free speech? The short answer is no.

Employees can be, and often are, held accountable for social media posts that reflect the

company they work for. As an employer, it is essential to know how to navigate such a

situation.

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Employee speech refers to expressions made by employees, either as private citizens or

in the course of their official job duties. Employee speech rights are governed by the

First Amendment—but with key limitations. There are three major categories of

employee speech: speech as a private citizen on matters of public concern (protected);

speech made as part of official job duties (unprotected); and speech not made on a

matter of public concern (unprotected).

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Speech is made as a private citizen on matters of public concern when a public employee

speaks outside the scope of their official job duties and the topic involves issues the

public would reasonably care about—such as safety, corruption, discrimination, or

misuse of public funds. An example of this category of speech would be a school nurse

testifying before the state board about unsafe building conditions.

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Speech is made as part of official job duties when the content and context of the speech

are tied to what the employee is employed to do, even if the employee was not explicitly

told to speak or write. This speech is unprotected even if it involves matters of public

concern. An example of this category of speech is a department head writing a memo to

the superintendent, raising concerns about staffing shortages and compliance issues

within her department.

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Public employees have limited First Amendment protections. Speech made as part of

official job duties is not protected, even if it addresses important public issues. In

general, personal grievances and internal workplace complaints (e.g., about schedules,

pay, or supervision) are not matters of public concern and receive no First Amendment

protection.

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As an employer, you should inform employees about expectations regarding social

media use in an employee handbook or other work policy. Remind employees to

maintain the confidentiality of business trade secrets and other private or confidential

information. Additionally, you should remind employees that they should specify online

that any posts made or opinions expressed are solely their own. Employees should not

go online and make statements on behalf of the company without prior authorization.

Employees have free speech rights, but employers may limit speech to maintain order,

discipline, and an effective work environment. Context and the speaker’s role matter.

Employees have fewer protections when speaking online within their job duties. Speech

may be restricted when it causes disruption, violates rights, or falls into unprotected

categories whether at or outside of work.

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