Navigating Employee Social Media Use During the 2024 Election: A Guide for HR Professionals

Policies & Procedures, Employment Law

As you know, the 2024 presidential election is shaping to be one of the most dynamic in recent history. Social media platforms like Facebook, Instagram, TikTok, and X (formerly Twitter) are brimming with political opinions, debates, and even heated arguments, making it easy for election-related conversations to spill into the workplace. As the lines blur between personal and professional lives online, HR professionals must be prepared to address the impact of employee social media activity—especially when it becomes problematic.

With just a few months left until November, it's crucial to ensure its policies are ready to address potential challenges head-on. This post covers key areas employers should focus on, from managing off-duty speech to ensuring compliance with the National Labor Relations Act (NLRA).

Off-Duty Speech: What Can Employers Do?

While the First Amendment protects free speech, it doesn't preserve private-sector employers similarly. Employers generally have the right to monitor employees' employees use during work hours. However, the situation gets trickier when it comes to off-duty social media activity.

From TikTok trends about the Harris-Walz campaign to Donald Trump's return to X, social media is buzzing with political content, and employees are bound to engage. The challenge for employers lies in understanding state and local laws governing employees' employee social media use. In some states, employers are limited in their ability to discipline employees for off-duty conduct unless it directly impacts the workplace. For example, some states protect employees' views expressed outside of work.

Before rushing to discipline an employee for an incendiary post, ask yourself: does this content directly affect the employee's employees perform their job, or does it violate company policy? While discriminatory or violent content should never be tolerated, differing political opinions—especially when civilly expressed—may require a more nuanced approach.

Protecting NLRA Rights

Beyond off-duty speech, employers must be mindful of the National Labor Relations Act (NLRA), which protects union and nonunion employees who engage in "protected "concerted activity. This includes the right to discuss working conditions, wages, and other employment matters—even on social media.

With the NLRB's 2023NLRB'scycle ruling, employers must ensure their social media policies are clear and not overly broad. A vague rule could lead employees to believe they're from discussing work-related issues, which may land the company in hot water. This is especially relevant in an election year, when employees may discuss how a candidate could impact their work environment (e.g., overtime, parental leave).

Action Steps for HR Professionals

As November quickly approaches, now is the time to review your company's policy. Here are a few key action items for HR professionals:

• Review state and local laws: Ensure your policies comply with protections around off-duty conduct.
• Clarify your social media policy: Ensure employees know what is unacceptable content and avoid overly broad language.
• Educate employees: Provide training on appropriate social media use and potential consequences of violating company policies.
• Monitor carefully but reasonably: Stay vigilant, but be mindful of employees, especially when protecting concerted activity.

If you need additional guidance, we are here to help! Contact kelly@texashrteam.com for a complimentary consultation to discuss your organization's needs.