Question: An employee posted concerning comments on their personal social media page. I am worried this may impact our business. Can I take any action against the employee?
Answer: Maybe. While an employee’s social media postings are personal, they are not private since they are shared with a broad audience. There are some posts which you can take action on while others are protected.
You usually can take disciplinary action if the post violates one of your policies, such as confidentiality or non-discrimination / harassment / sexual harassment, or shows the employee participating in illegal activity, such as looting or violence. Disciplinary action can include termination if serious enough.
However, if the employee’s post expresses their frustration or concern over working conditions (such as wages, management, or safety), it probably could be considered “protected concreted activity” under the NLRA and therefore, no action should be taken except trying to rectify the concern. Also, some states also protect legal off-duty behavior so a post of an employee legally smoking marijuana, for example, is also protected.
