Question 1

Why are employers becoming more reluctant to take public political stands?&nbsp;

Accepted Answer

Employers have become increasingly timid about advocating for political positions because modern public opinion is often split nearly 50/50. Taking a stand may appeal to one half of a workforce or consumer base while completely alienating the other half, potentially leading to massive losses in market value or dual boycotts from both sides of the political spectrum (02:38).

Question 2

Can an employer have a dress code that bans political buttons or apparel?&nbsp;

Accepted Answer

Yes, most current legal rulings suggest that an employer can implement a dress code that limits political paraphernalia in the workplace. This is often done to avoid the contention that arises when one group's insignia (such as Black Lives Matter) leads to demands for opposing insignia to be allowed as well (05:11).

Question 3

Can I fire an employee for complaining about their supervisor on social media?&nbsp;

Accepted Answer

There is no standard "yes" or "no" answer. If an employee's post is a "concerted complaint"&mdash;meaning it involves other employees and relates to working conditions&mdash;it may be protected under the National Labor Relations Act (NLRA). In such cases, the employer generally cannot discipline or terminate the employee for that speech (08:25).

Question 4

What is "concerted activity" under the National Labor Relations Act?

Accepted Answer

Concerted activity refers to group actions or complaints by employees intended for "mutual aid or protection" regarding their working conditions. Section 7 of the NLRA protects these rights, meaning employers cannot punish employees for exercising this form of free speech, even if a union is not involved (09:39).

Question 5

Can an employee be fired if their protest includes offensive or discriminatory language?&nbsp;

Accepted Answer

Yes. While a protest about working conditions may be protected, that protection can be lost if the employee uses speech that is egregiously offensive or violates the company's equal opportunity principles. A well-documented termination must clarify that the discipline is specifically for the unprotected, offensive portion of the conduct (15:30).

Question 6

Does the First Amendment protect free speech in a private workplace?&nbsp;

Accepted Answer

No. The First Amendment limits the government's ability to restrict speech and provides special protections for public (government) employees. It does not apply to private employers, though other laws like the NLRA or state-specific statutes might offer different types of protection (20:00).

Question 7

What is the best way to write a social media policy that is legally defensible?&nbsp;

Accepted Answer

A social media policy should be narrowly tailored to reflect legitimate and substantial business interests. To avoid "chilling" protected speech, it is recommended to include a disclaimer next to sensitive rules stating that the policy will not be applied to prohibit activity protected by Section 7 of the NLRA (21:08).

Question 8

Can I stop employees from posting flyers or messages around the office?&nbsp;

Accepted Answer

Employers have the right to control postings on their facilities. It is legally safer to have a policy that prohibits all postings on company property or confines them to a single, designated bulletin board. Allowing unmonitored postings everywhere can make it difficult to legally restrict controversial or union-related materials later (25:48).

Question 9

Am I required to take action if an employee posts something offensive off-duty?&nbsp;

Accepted Answer

In some cases, yes. If an off-duty social media post is discriminatory or creates a hostile work environment that carries over into the workplace, the employer may have a legal obligation to intervene to prevent harassment or reputational damage (28:14).

Question 10

What should I do first if I see a controversial post by an employee?&nbsp;

Accepted Answer

First, verify the source of the complaint and obtain a permanent record, such as a screenshot, of the post itself, as online content can be easily deleted or edited. Before taking disciplinary action, consider if the issue can be resolved through counseling or "browbeating," which carries less legal risk than termination (34:40).

NLRA (National Labor Relations Act)

Days of Flags and Rainbows - Does Your Office Have a Policy Governing Office Decor?

Do Your Work Rules Violate the National Labor Relations Act?

H-2A Farmworker Proposal Would Promote Union Organization in Agriculture

Kirk’s Killing Cautions Employers To Consider Speech Policing

NLRB Administrative Law Judge Rules against Non-Compete and Solicitation Clauses under Labor Act

Would you like to receive timely legal alerts, upcoming webinar announcements, and the Employment Law newsletter in your email inbox?