With the advent of the recent Hamas attacks on Israel and the ensuing war, social media platforms have been rife with posts on both sides of the conflict. Some posts have led to friction between employees and employers, especially those that seem to call for or even celebrate violence.
For instance, according to a report from The Cut, a Yemeni Muslim aesthetician at a Columbus, Ohio, salon owned by a Jewish woman posted an image of a Palestinian man raising a Palestinian flag on top of an Israeli tank on Instagram. She also shared a screenshot of an X post stating, “Gaza broke out of prison.” After receiving a reprimand from her manager, the woman removed the posts and replaced them with a less controversial post in support of Palestinians and fellow Arabs.
The salon owner, whose husband had two friends taken hostage by Hamas, posted negative comments about Hamas on her Instagram page and came to the salon to express her displeasure at the worker’s posts. The worker asked for a termination letter the following day, feeling like her employer had attempted to censor her.
Investigating and Accessing Social Media Posts
Employers should take time and fully investigate the post before taking disciplinary action. Employers must take care to discern between support for terrorism and advocacy for greater rights for the Palestinian people. Taking adverse action against an employee solely for advocating on behalf of Palestinians is likely legally objectionable. Employers must also ensure that the post does not create a hostile work environment for other employees.
Furthermore, if a person’s social media platform settings are private, an employer may not access it under the Stored Communications Act. An employer may request that the employee share a private post, which still carries some risk of unauthorized access, but an employer acting without seeing the post also can be risky.
Employer Policies and Training on Employee Social Media Posts
All employers should have clear policies on employee social media posts that they should review and update regularly. They should ensure that employees know those policies, which likely should include prohibitions on using the employer’s name and/or tagging the employer in the posts.
Employers also generally should refrain from responding online to social media posts, which is likely to draw further attention to the post, give it credibility, and invite additional posts and comments. However, ignoring the post and not addressing it with the employee is also not advisable. Instead, employers should review the post, talk to the employee, and make a prompt decision on whether to discipline the employee in connection with the post.
At-Will Employment and Exceptions
Private employers generally have the legal right to discipline and fire employees for the content of their social media posts, especially if they are hostile. Employers should be aware of the exceptions to the employment-at-will rule, which include the following:
- Political speech protections under some state laws;
- Off-duty conduct protections under some state laws;
- Just-cause requirements for some workers under some union collective bargaining agreements, some executives under some employment agreements, and all workers in the state of Montana;
- Federal and state protections against prohibited discrimination; and
- Constitutional protections for public employees and state constitutional protections for private employees in some states.
