Employer Rights, Risks, and Obligations in the Modern Age of Social Media
By Catherine “Cat” Scott and Daniel Fishman
Employers face unprecedented scrutiny for what their employees say and do when off the clock. In the era of ubiquitous smartphones and instantaneous sharing on social media, an employer can become part of a media cycle overnight, whether because of an employee’s own post or a bystander’s video. Online content generated on an employee’s personal time can quickly spill into the workplace and media, triggering brand backlash, customer concern, and internal disruption.
Unsurprisingly, this environment has prompted many employers to adopt and aggressively enforce policies governing off-duty social media use. Recent data points to a sharp increase in social media–related discipline. One survey of over 1,000 business leaders reported that one in four companies had disciplined an employee for what were perceived to be political posts within a month of Charlie Kirk’s assassination. 1 in 7 Companies Punished Employees Over Charlie Kirk Social Media Posts, ResumeTemplates.com (Sept. 30, 2025) (Charlie Kirk was a rightwing activist, media personality, and political ally of President Donald Trump who was shot and killed at a public speaking event on September 10, 2025. Some who disagreed with Mr. Kirk’s views celebrated his death online, which led some of Mr. Kirk’s allies to target his online critics and their employers); Josh Boak and Nicholas Riccardi, After Kirk’s killing, a growing chorus of conservatives wants his critics ostracized or fired, The Boston Globe (Sept. 15, 2025). Employers polled in this study cited the tangible effects such posts can have in the workplace as the justification for discipline: 29% reported increased workplace conflict stemming from political social media posts, and at the time, 72% indicated that such conflict intensified after Kirk’s death.
Given the ease with which employees can broadcast controversial or inflammatory views online, employers must carefully assess the legal boundaries of when online speech, whether political or not, may serve as a lawful basis for discipline. This evaluation requires an understanding of the legal constraints that govern the development and enforcement of employer policies addressing employees’ social media and online conduct.
Public Employers’ Regulation of Off-Duty Speech
Public sector employers are governed by different standards than those of private employers. The First Amendment provides some limits as to what public sector employers can do in response to their employees’ off-duty speech, including online and/or social media activity. Public employers that discipline employees for constitutionally protected speech may face liability. At the same time, constitutional protection is far from absolute, and not all online speech by public employees is protected.
To establish First Amendment protection for off-duty speech, an employee must first show that the speech was made as a citizen, rather than pursuant to official job duties, and that the speech addressed a matter of public concern. Speech involving political or community issues may satisfy this standard, while purely personal workplace disputes typically do not. If the employee cannot demonstrate that their off-duty speech involved political or community issues, rather than personal workplace disputes, First Amendment protections do not apply, and employers are free to discipline employees for engaging in this speech.
If the employee’s threshold showing is met, courts apply the Pickering balancing test, under which the employee must demonstrate that his or her interest in commenting on matters of public concern outweighs the government employer’s interest “in promoting the efficiency of the public services it performs through its employees.” Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, 391 U.S. 563, 568 (1968). This fact-intensive inquiry examines, among other things, the “time, place, and manner of the employee’s speech” and the “employer’s motivation in making the adverse employment decision.” Decotiis v. Whittemore, 635 F.3d 22, 35 (1st Cir. 2011).
The proliferation of social media has resulted in a spike in First Amendment-related litigation arising from public employee social media usage. See Abby Ward, In Defense of Pickering: When a Public Employee’s Social Media Speech, Particularly Political Speech, Conflicts with Their Employer’s Public Service, 108 MINN. L. REV. 1643, 1666–74 (2024) (collecting cases). While the inquiry is generally fact-based, courts have largely condoned employer discipline based on social media posts that interfered with operations and hurt relationships among coworkers and sided with employees disciplined solely for negative comments about leadership decisions. Compare Grutzmacher v. Howard Cnty., 851 F.3d 332, 344–48 (4th Cir. 2017) (posts about gun control that resulted in internal complaints, conflicted with employee’s job duties, and undercut community trust in employer not protected speech) with Liverman v. City of Petersburg, 844 F.3d 400, 410 (4th Cir. 2016) (comments about the safety issues associated with inexperienced police officers becoming instructors were protected public speech that did not affect workplace).
Simply stated, the legality of public employee discipline for social media activity is highly fact-dependent, based on the content of the speech, the context of the workplace, and the effects of the speech on the workplace. Public employers continue to benefit from clear, written policies that outline generally what speech may or may not be protected, especially as it pertains to employees’ job duties. These policies should highlight the consequences of speech that disrupts operations, undermines public trust, or violates other employee obligations.
Private Employers’ Regulation of Off-Duty Speech
While private sector employers are not constrained by the First Amendment, their discretion to discipline employees for social media use is not unlimited.
The most significant legal constraint in this context is the National Labor Relations Act (NLRA). Section 7 of the NLRA protects private sector employees who engage in “concerted activities for the purposes of . . . mutual aid and protection.” 29 U.S.C. § 157. This includes employees’ discussions about pay, benefits, and working conditions, which, depending on the political leanings of the National Labor Relations Board (NLRB or the Board), can be defined broadly or narrowly. Critically, these protections extend to off-duty conduct and online speech. The NLRB has repeatedly held that employees may not be disciplined for exercising Section 7 rights merely because those activities occur on social media. For example, the Board has found that employees’ engagement on a coworker’s Facebook post involving criticism of their job performance constituted protected concerted activity. Hispanics United of Buffalo, Inc., 359 NLRB No. 37 (2012).
At the same time, Section 7 does not insulate all online speech from discipline. Individual gripes that are not undertaken for mutual aid or protection fall outside the NLRA’s protection. Similarly, the NLRA does not protect speech that is egregiously offensive, knowingly false, or wholly disconnected from any labor-related concern, including public disparagement of an employer’s products or services unrelated to a labor dispute. Consistent with this limitation, an advice memorandum from the NLRB’s general counsel concluded that an employee who complained about his pay and disparaged his employer’s customers did not engage in protected conduct where the post was not discussed with coworkers and elicited no employee response. United States Government National Labor Relations Board, Office of the General Counsel, Advice Memorandum, (July 7, 2011).
While the NLRA largely regulates the relationship between employers and their employees’ unions, private sector employees have Section 7 rights under the NLRA regardless of whether they are unionized. Employees who are unionized may have additional protections pursuant to their respective collective bargaining agreements.
Against this backdrop, any policies governing off-duty speech and/or employees’ use of social media or other online resources should be drafted with particular care. Recent NLRB decisions have applied heightened scrutiny to workplace rules that could reasonably be construed to chill protected activity, even if that chilling effect is unintended. Stericycle, Inc. & Teamsters Loc. 628, 372 NLRB No. 113 (2023). While the new NLRB majority may revisit this standard, many well-advised employers have responded by favoring narrower, more precise policy language over broad or ambiguous (intentionally or unintentionally) policies that risk running afoul of the current standard set forth by the NLRB.
With respect to state laws nationwide, there are few additional constraints on discipline for employee social media use. In Massachusetts, for example, employers may not discipline employees for giving or withholding a vote or political contribution. Mass. Gen. Laws Ann. ch. 56, § 33. Beyond that limited protection, however, Massachusetts law generally does not restrict what employers can do in response to off-duty political expression, a position that reflects the rule in most states nationwide.
However, employers with a multi-state workforce—which is increasingly common post-pandemic with many employers opening up remote positions where possible—must remain attentive to outlier jurisdictions. For example, California law prohibits employers from disciplining employees for lawful off-duty conduct or from maintaining an employment policy that controls the political activities of employees. Cal. Lab. Code §1101, §1102, §96(k). Employees have increasingly invoked these statutes in California to mount challenges to terminations related to off-duty social media use. See Koraitem v. Microchip Tech., Inc., No. 5:24-CV-00462-EJD, 2025 WL 2856292, at *3 (N.D. Cal. Oct. 8, 2025) (denying summary judgment for employer who terminated employee for “offensive” social media posts related to Israel-Hamas war). Other states like Colorado and New York have comparable protections, making geographic location a relevant consideration in policy drafting and enforcement decisions. Colo. Rev. Stat. § 24-34-402.5 (discriminatory or unfair employment practice for an employer to terminate an employee for engaging in lawful activities off the employer’s premises during nonworking hours); N.Y. Lab. Law § 201-d (prohibiting employers from discriminating against employees for refusing to attend employer-sponsored political or religious meetings and for engaging in lawful political or recreational activities off-duty). Accordingly, employers operating across multiple jurisdictions should be wary of having a one-size-fits-all policy governing employees’ off-duty speech, especially if it broadly restricts employee speech.
Employer Obligations to Respond to Harassing Social Media
Employee social media activity does not merely create disciplinary risk; it can also trigger affirmative obligations for the employer to respond. Under both federal and state law, employers have a legal obligation to take prompt remedial action to stop unlawful harassment they know or should have known about. Mod. Cont’l/Obayashi v. Mass. Comm’n Against Discrimination, 445 Mass. 96, 107 (2005); 29 C.F.R. § 1604.11. The Massachusetts Commission Against Discrimination’s Guidelines on Harassment in the Workplace explicitly identify how and when unlawful harassment can occur via online interactions, recognizing that harassment may be actionable even when it occurs entirely in digital spaces. As the Guidelines explain, the online environment is “an ever-present and pervasive aspect of virtually every employee’s workplace and personal life.” Massachusetts Commission Against Discrimination, MCAD Guidelines on Harassment in the Workplace (July 2, 2024).
Recent case law underscores the consequences of inaction. In Okonowsky v. Garland, for instance, an employee alerted management to an anonymous Instagram account that posted overtly sexist, racist, and bigoted memes referencing the employer, its employees, and its clients. Okonowsky v. Garland, 109 F.4th 1166 (9th Cir. 2024). Although the employer downplayed the conduct and delayed its investigation, the district court granted its motion for summary judgment. On appeal, the Ninth Circuit reversed summary judgment and concluded that a reasonable juror could find that the employer failed to take prompt and effective remedial action. The case went forward to trial, highlighting the litigation exposure that can follow an employer’s failure to respond decisively to online harassment. See Okonowsky v. Barr, No. 2:21-cv-07581 (C.D. Cal. Jan. 21, 2025), ECF. No. 114 (plaintiff was ultimately unsuccessful at trial, but the employer still suffered the cost, risk, and reputational damages associated with a multi-year sexual harassment case).
Conclusion
Employer social media policies and practices require a deliberate balancing of competing business interests. While restrictive policies may mitigate reputational harm and reduce internal conflict, overbroad policies introduce their own risks, including legal exposure and employee relations challenges. As with many areas of employment law, however, the greatest risk lies not in policy language, but in enforcement.
Social media content frequently implicates hot-button political issues that are closely intertwined with characteristics protected by anti-discrimination laws. When employers enforce social media policies unevenly or appear to police one side of a political debate more aggressively than the other, those enforcement decisions may be cited as evidence of discriminatory intent.
Ultimately, the combination of lawful, clear policies and consistent, well-documented enforcement is the most effective tool employers have to reduce exposure while maintaining control over workplace conduct in an increasingly public digital environment.
Catherine “Cat” Scott and Daniel Fishman are attorneys at Morgan, Brown & Joy, LLP, a management-side labor and employment boutique law firm in downtown Boston where Cat is a partner and Daniel is an associate. Both maintain an active litigation, counseling, and training practice in all areas related to labor and employment, representing employers from three to three hundred thousand employees in various industries, such as life sciences, technology, higher education, hospitality, and healthcare.
