Freedom To Post? Handling Employee Speech Outside The Workplace

The past month has boasted no shortage of headlines about employees being placed on leave or losing their jobs because of posts on social media. But for Illinois employers, these headlines drag to the surface a legal question that is not at all new: when can a private employer restrict what an employee says or posts in their personal time or on their personal social media accounts? The answer to this question will undoubtedly vary based on the situation. But Illinois employers should read on for a general understanding of how the First Amendment and Illinois Right to Privacy in the Workplace Act operate in this context. And they should reach out to counsel to ensure their policies and approach in these situations is in line with this legal framework.

The First Amendment's Application to Private Employers

At a high level, the First Amendment's protection of free speech is designed to protect individuals from censorship and speech restrictions from the government—not from private individuals. Private employers generally may apply certain restrictions on an employee's speech in the workplace. This means that employers can—and often do—have policies and practices that limit what an employee can say when the employee is at work or otherwise speaking on behalf of the employer. And, private employers generally may discipline or terminate an at-will employee who says something that the employer finds objectionable, at least without running afoul of the First Amendment.

Even so, private employers should proceed with caution.

Of course, the First Amendment is not the only legal consideration for employers wondering how to address issues of employee speech. For example, all employers, no matter their state, should be careful not to restrict an employee's off-duty speech when such speech could be considered a "concerted activity" under the National Labor Relations Act. This would include employees discussing wages, working hours, or other workplace issues, in an effort to improve their terms and conditions of employment. Employers should also be careful that any limits or restrictions on employee speech are enforced and felt equally across the workforce, regardless of the employee's characteristics such as race, national origin, sex, religion, etc. And for employees covered by a valid employment contract, employers should be careful that any adverse employment action related to speech falls within the bounds of that contract.

In addition to the above considerations (which is an illustrative — not exhaustive — list), employers should also account for state-specific laws that may restrict how and when an employee can limit an employee's out-of-work conduct.

First Amendment Aside, Illinois Restricts What Private Employers can Police Outside Workplace, including What Employees Do Online

In Illinois, the Right to Privacy in the Workplace Act (the "Right to Privacy Act" or the "Act") limits how and when an employee may be disciplined at work for their off-duty conduct or speech. The Act is most well-known for its Section 5, which is the provision prohibiting an adverse action against an employee for the employee's lawful and off-duty use of marijuana, so long as the employee neither uses nor is under the influence of marijuana while on the employer's premises, or during working or on-call hours.

Another provision of the Act — Section 10 — speaks directly to an Illinois employer's ability to examine an employee's private social media account or online activities. The short answer? If the employee's account is private, the employer generally cannot access it.

Specifically, the Act says that employers may not do the following:

• ask or require an employee to turn over their username and/or password so that the employer may get into the employee's social media or online account;
• ask or require the employee to access their own social media or online account in the employer's presence;
• require an employee to invite the employer to join a group affiliated with a personal online account;
• require an employee to join an online account established by the employer, if doing so would mean that the employer could access the employee's personal online account;
• take any adverse action against an employee refusing to provide the employer with access to the employee's private social media or online account, in any of the ways listed above.

The Act applies equally to employees and to job applicants.

Can Illinois Employers Ever Examine an Employee's Personal Social Media Account?

The Act provides some exceptions. Employers may of course control what an employee posts on behalf of the employer or on the employer's social media or online sites. Employers also have greater control to monitor what employees post or say when using an employer-provided computer, phone, or other electronic device. When an employee has a public social media or online account, employers may access the employee's information on the public domain.

The Act also provides limited exceptions in which an employer can require an employee to share specific content from the employee's personal account. The employer may do so only when the employer receives a report or complaint about specific content on an employee's personal account, and the report alleges that the content shows:

• the employer's proprietary or confidential information;
• evidence that the employee violated a law or regulation, or committed workplace misconduct;
• evidence the employee was using a personal online account for business purposes; or
• evidence that the employee was violating company policy by using the personal account during business hours, on business premises, or while using an electronic device supplied by the company.

Even in these limited circumstances, however, the employer may not ask for general access to the employee's account or for the employee's username, password, or other authenticating information.

And, keep in mind, the Act is not without teeth. A violation of the Right to Privacy in the Workplace Act would provide for a private right of action, with penalties and attorney's fees for willful violations.

Practical Steps for Illinois Private Employers

Though private employers in Illinois technically fall outside the First Amendment's umbrella, they still should proceed carefully and consult counsel when thinking of disciplining or firing an at-will employee for the employee's out-of-work speech. Some practical first steps for all employers include:

Crafting applicable policies

• Review or draft social media or acceptable speech policies for the workplace
• Consider adopting policies for acceptable speech in the workplace and for the company's approach for handling off-duty speech, including social media posts and the impact such posts might have on the workplace
• Focus on framing. Acceptable speech policies are about creating a welcoming, distraction-free environment where all employees can thrive
• Always enforce policies consistently across the workforce

Receive a complaint? What to do next.

• Don't ask the employee for login information or for general access to the personal account at issue
• If you need access to a specific online post for a specific reason, ensure your access complies with the Illinois Right to Privacy in the Workplace Act
• Document the complaint or report, as well as any actions taken pursuant to the policy

Talk to Counsel

As always, work with your legal counsel to update or review your policies and to navigate complaints as they arise, preferably before taking action.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.