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As you know, the 2024 presidential election is shaping up 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 over 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 your policies are ready to address potential challenges head-on. This post covers key areas employers should be focusing 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 extend to private-sector employers in the same way. Employers generally have the right to monitor employees’ social media use during work hours. However, when it comes to off-duty social media activity, the situation gets trickier.

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’ personal 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’ political 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 ability to 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 need to be mindful of the National Labor Relations Act (NLRA), which protects both union and nonunion employees’ rights to 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 2023 Stericycle ruling, employers must ensure their social media policies are clear and not overly broad. A vague rule could lead employees to believe they’re prohibited from discussing work-related issues, which may land the company in hot water. This is especially relevant in an election year, when employees may be discussing how a candidate’s platform 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 social media 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: Make sure employees know what is considered 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 fairly: Stay vigilant, but be mindful of employees’ rights, especially when it comes to protected 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.