Employment Tip Of The Month – November 2025

Q: Can employers discipline or fire employees for their social media content, including their activities captured and shared online?

A: "Yes, BUT . . ."

Yes: Since the First Amendment's guarantee of freedom of speech applies only to state actors (e.g., the government), the First Amendment does not restrict private employers from taking action against employees for their social media content.

BUT: Connecticut state law extends the First Amendment's freedom of speech to the private sector. Connecticut's law protects employees for speech: (1) made as private citizens; (2) addressing a private concern; (3) which does not interfere substantially with the employee's job or the employer's business; and (4) made pursuant to their official job duties and related to serious wrongdoing, official dishonesty, deliberately unconstitutional conduct, or threats to health and safety.

BUT: The National Labor Relations Act (NLRA), which applies to both unionized and non-unionized, non-supervisory employees and applicants, is a federal law that protects employees who engage in concerted activities for purposes of mutual aid or protection. Employers should be mindful of the NLRA when reviewing social media content posted by employees or applicants related to terms and conditions of employment, such as compensation or poor working conditions.

BUT: States such asCalifornia, Colorado, New York, and North Dakota protect employees from employment discrimination for their lawful, off-duty conduct. New York State law specifically references examples of such conduct, including an employee's political activity and legal use of consumable products such as alcohol or cannabis. North Dakota's statute qualifies the protections afforded insofar as the lawful, off-duty activities are not in direct conflict with the employer's essential business interests. Therefore, employers with employees in these states should ensure they do not run afoul of state laws before taking adverse employment action against employees for otherwise lawful off-duty conduct, such as drinking alcohol, smoking, vaping, or the use of weapons.

BUT: Many states, including California, Louisiana, Minnesota, Missouri, Nebraska, Nevada, New York, South Carolina, and West Virginia, prohibit employers from taking adverse employment action against employees for their political activity. In today's heated political climate, employers should check governing state law before taking adverse employment action against individuals for their online political activity, such as memes or videos created at political rallies.

BUT: Approximately half of all states have enacted laws that prohibit employers from accessing their employees' non-public social media accounts. These protections prohibit employers from requesting or requiring employees to grant access to their personal social media accounts, provide access to their accounts in the employer's presence, or accept "friend requests" from their employer. Therefore, before employers take employment action against an employee for the employee's social media activity, they need to trace the source of the information to ensure that it was obtained in a manner that does not run afoul of a state's social media privacy laws.

BUT: Even in locations where employers are not restricted from taking action against employees for their social media content, they should be consistent in their discipline of employees to avoid selectively targeting social media content, which can serve as evidence of discriminatory animus. For example, terminating an employee for taking a particular side in the Israel-Gaza conflict but not disciplining an employee for voicing a counter position can lead to the argument that the employer harbors discriminatory animus based on an employee's religion, ancestry, or national origin.

Considerations for employers – to manage the BUTS:

• Employers should ensure that they have a current Social Media Policy that clearly defines their expectations and carves out content that the NLRA and other applicable state laws otherwise protect.
• Employers should uniformly apply their Social Media Policy to ensure they are not selectively limiting social media content in a way that can be used as circumstantial evidence of an employer's discriminatory animus toward a protected class.
• Employers should be mindful of protections afforded to employees under state laws, which may otherwise restrict their ability to make hiring, discipline, and termination decisions based on an individual's social media content.
• Notwithstanding protections afforded employees for their social media activity, employers have considerable leverage if the social media content is defamatory, discloses their confidential proprietary information, incites violence, or constitutes hate speech, unlawful harassment, or discrimination.

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.