An employee told me that one of our new hires has made public social media posts the employee finds concerning. The employee is worried about safety and how this could affect our workplace. How should I respond to this employee’s concerns?
First, it’s important not to make assumptions. Employers often feel pressure to act quickly when a concern like this is raised, but moving too fast can create legal risk.
Employers should gather the facts and evaluate them in light of the legal protections that apply to off-duty conduct. This means conducting a thorough investigation into the situation. Confirm what was actually posted, when it was posted, and whether it truly belongs to the employee. Speak directly with the employee to gather context and document the facts gathered.
Lawful Off-Duty Conduct
California law protects employees from retaliation for lawful off-duty conduct, including political activities. As such, an employee generally cannot be disciplined for expressing political views, attending a rally, or sharing their political opinions online outside of work.
Additionally, under the National Labor Relations Act, employees have the right to act together to improve workplace conditions, which includes posting about issues such as pay, scheduling, or safety. Even if those posts are critical of the company, they may be protected if the intent is to encourage group discussion or action.
Harm to Workplace
Not all off-duty conduct is protected, however. Off-duty conduct may justify employer action if it crosses into areas that harm the workplace or company.
For example, if speech or behavior creates threats or intimidation, violates anti-harassment or discrimination policies, misrepresents the employee as speaking on behalf of the company, or causes serious disruption to operations or business relationships, then employers can and should respond.
The key distinction is whether the conduct has a direct impact on the workplace, not whether the employer agrees or disagrees with the employee’s personal beliefs.
In addition, if an employee makes a post while on the clock or using company resources, other policies may be triggered (for example, social media policy, company device policy), warranting a distinct review.
After Investigation
Once the investigation is complete and the facts are clear, employers can assess whether any policies have been violated and whether discipline is appropriate.
In some cases, it may be enough to monitor the situation and remind employees that all workplace interactions must remain respectful and professional. In others, corrective action may be justified when it is based on direct harmful workplace impact.
Employers should apply policies consistently and rely on documented facts — focusing on conduct rather than beliefs — to demonstrate fairness and ensure concerns are addressed appropriately.
Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred members and above. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.
