Social Media and the Workplace: Free Speech Meets Employment Law

Episode Notes

Transcript

Aaron Holt:

That’s also the whole point of free speech is allowing people to speak even if it’s not the party’s message, even if it is not something that you might agree with. There’s a great quote from Ben Franklin, “I might disagree with what you say, but I would defend to the death your right to say it.

Matt Greer:

” How has social media become today’s workplace water cooler? In this episode, guests SaNni M-K Lemonidis and Aaron Holt break down how online conduct impacts modern workplace obligations, including constitutional, federal, and state protections and discuss recent case law. They offer a clear practical framework for navigating social media issues with confidence. Hello and welcome to the ABA Labor and Employment Law Podcast. I’m your host, Matt Greer. In my day job, I work for the Washington State Public Employment Relations Commission, where I spend most of my time serving as a public sector labor relations mediator, hearing examiner, arbitrator, and trainer, always as a neutral. Probably like you, my focus area is one small piece, the bigger labor and employment law universe. I enjoy broadening my knowledge to this podcast and learning about what’s going on in the wide world of labor and employment law from experts in the field.

On today’s episode, I’m happy to welcome Aaron Holt and SaNni M-K Lemonidiss to discuss the many interesting ways use of social media has an impact on the employment relationship. SaNni represents employees and unions and is co-founder and managing principal of Streepy Limidis Consulting and Law Group based in Seattle. Aaron represents employers at the law firm of Cozen O’Connor and is based in Houston. SaNni and Aaron are both frequent and expert presenters on this topic, and I really appreciate them both joining us to share their wisdom on this episode. Be sure to check out their full bios in the show notes. Thank you so much for joining us, Aaron and SaNni. How are you doing today?

Aaron Holt:

Very well. Thanks for having us.

SaNni M-K Lemonidis:

Thank you so much. I’m excited to be here.

Matt Greer:

Great. Welcome to the show. I really appreciate you taking the time to talk with us. So I thought as we’re getting this conversation started, I know we’re going to be focusing in on the social media impact on the employment relationship, but I don’t know, assuming that maybe some of our listeners are maybe not quite as familiar with what even social media is, I don’t know if we want to start off by just talking just briefly about what is social media these days and why is it kind of important as we have this conversation about the workplace and the employment relationship?

SaNni M-K Lemonidis:

One of the things I was thinking about was trying to explain it to someone who maybe doesn’t have that familiarity. It’s the water cooler, but everywhere. It is now in virtual spaces and physical spaces, but it’s literally that same, just a point of connection for people.

Aaron Holt:

Yeah, I would agree with that. I think it’s another vehicle to communicate. Speech at its core is the point of social media to go and connect with other communities. It’s just a different technological medium. In the olden days, maybe there was a printing press. Email was a big technological jump for this, and now we have social media. And there’s a quote that comes to mind from the movie The Social Network that I have found to be more true as time goes on. And it goes something like this. We used to live on farms then in cities. Now we’re all living on the internet. And I’ve found that to be more true as time goes on and that in turn has started to bleed into the workplace. There are more social media or speech-related issues or disputes or methods of advocacy that have found their way into the workplace and into the labor and employment space.

Matt Greer:

Yeah. What’s new is old kind of things, new versions of older concepts, a water cooler, the pamphleting kind of approach. I think that’s really an interesting way of thinking about it. So maybe the next question we have is can employers regulate that kind of conduct, that kind of speech through social media, whether it’s inside or outside the workplace?

Aaron Holt:

So the correct answer unfortunately is it depends. Oh gosh. Which lawyers love to use, but luckily we have a fair amount of time to walk through the things that it depends on. And I think this is a good time as I need to table set this. So an employer’s ability to regulate speech, whether or not that’s through discipline or coaching or what have you, is going to be dependent upon the content and context of speech. It’s very nuanced and there are three important, I guess you’d call them buckets for evaluating the content and context of speech to determine whether or not an employer has either a duty or obligation to do some kind of regulation of the speech, to make sure it doesn’t happen in the future, or they should not touch that speech because it might be protected. Generally speaking, those two buckets are going to be one speech that should be prohibited and they might have a duty to regulate.

Examples would be like harassment, discrimination, maybe disclosure of trade secrets, threats of violence, things like that. The second bucket would be the National Labor Relations Act, which provides a protected right to engage in concerted activity, which we’ll talk about. And then the third bucket would be free speech. Sometimes you see that overused, I would say. And yes, free speech is an important part of every citizen’s right in our country, but it doesn’t apply to your private place of employment. And the manner and method of that speech can sometimes lose protection of the law.

Matt Greer:

Yeah. Sanja, is that kind of how you see it as well, the overall framework here?

SaNni M-K Lemonidis:

Oh, absolutely. I mean that is the entire legal framework is content and context and understanding that nuance and figuring that out. That’s key.

Matt Greer:

Great. Well, I’m looking forward to getting into this and exploring those buckets a little more. Does it make sense to start off with that first one? What are things that the employer should regulate, things that are a best practice perhaps in terms of what an employer should be doing?

Aaron Holt:

Absolutely. So first I would say that this applies to speech that could be both inside or outside of the workplace. I gave some examples of content of speech that would be important to consider and harassment discrimination being one of them. And I think that’s important to understand and every HR professional knows this, that there are state and federal and local laws that prohibit certain types of conduct. Harassment, discrimination on the basis of some protected category, retaliation on the basis of some protected activity. Title VII, one of the primary labor and employment laws that we all utilize in our practice provides two consistent requirements that employers have to abide by. One is they have a duty to create a work environment that is free from harassing and discriminatory conduct. And every employer does that the same way by creating a handbook and establishing policies and rules of the road for what is acceptable behavior in the workplace.

And the second component that is sometimes missed is employers are required to take action when necessary to eliminate or address conduct that violates those policies. So the law somewhat allows for humans to make mistakes, but an employer has to take action because at a certain point, looking the other way becomes ratification of conduct. It becomes acceptance of that kind of conduct. Sanai mentioned a water cooler at the beginning, and I always kind of use this when I’m talking to clients. There’s what I would call a water cooler principle applied to social media and speech. So you take that same comment that was made on social media and you pretend that it was made at work in front of the water cooler between employees. Does it violate your policies? If the answer is yes, then it violates your policies and you might have a duty to take action to address that kind of conduct.

The law doesn’t necessarily differentiate too much on the venue of that speech because the employer’s duties to the work environment and sometimes outside of work conduct can bleed into the work environment such that they might have a duty to take action.

SaNni M-K Lemonidis:

And I think actually it’s bleeding a lot more just with the ubiquitousness of social media and how people connect. And so where before there seemed to be a more clear line as to what was really on duty and off duty. Now that line is so blurred and because of the way people relate and the connections they have, that’s going to bleed from personal to professional and it gets messy.

Aaron Holt:

Yeah, so I completely agree with that. And the courts are starting to recognize those principles as well. The case that comes to mind on this particular point specifically is a fairly recent case from 2024 out of the Ninth Circuit called Okanowski versus Merrick Garland. Just briefly in that case, there was a staff psychologist working for a federal prison and some coworkers that were operating an Instagram account that had a lot of sexually and misogynistically charged content on it. Some of it was about her specifically. It’s

SaNni M-K Lemonidis:

Putting

Aaron Holt:

It mildly.

It’s pretty egregious conduct if you go and read the case. But anyway, she complains, there’s an investigation, they get told to stop. It doesn’t stop. She ends up transferring to a different facility and eventually filing suit and the district court grants summary judgment because the conduct occurred entirely outside of the workplace. This is all social media conduct that she was not necessarily a party of. It was a bunch of coworkers talking about her on their social media and she found out about it and she complained about it, but it wasn’t displayed in the workplace. It wasn’t sent to her in the workplace. And that was the basis of the trial court granting summary judgment on that. The Ninth Circuit gets this case on appeal and they have some just, I think, really important quotes for employers to remember on this space in particular. They said specifically that they rejected the notion that, “Only conduct that occurs inside the physical workplace can be actionable, especially in light of the ubiquity of social media and the ready use of it to harass and bully both inside and outside of the physical workplace.” Specifically referring to social media quotes and these posts that this lady was subjected to, the court noted that they are, “Permanently and infinitely viewable and reviewable by any person with access to the page or site to which the posts appear.

Employees who follow the page were free to and did view, like, comment, share, screenshot, print, and otherwise engage with or perceive these abusive posts from anywhere, including from the workplace. And as a result, even if discriminatory or intimidating conduct occurs wholly offsite, it remains relevant to the extent it affects the employee’s working environment.”

Matt Greer:

Interesting. That’s a relatively recent case. I think we’ll try to put a link to that or the citation in our show notes if people want to read that. Sounds like there might be some interesting facts there that people can look at.

Aaron Holt:

The citation, just to save everyone

Matt Greer:

Some

Aaron Holt:

Time looking it up, is 109F41166.

Matt Greer:

I mean, is it common nowadays for employers to have specific social media policies that define that separately from maybe just general conduct policies? I’m kind of curious about that.

SaNni M-K Lemonidis:

In my practice, definitely. And if anything, it’s one of the policies wherein bargaining over the effects generally tends to be kind of contentious, but it is definitely something that… Because the union has to hold two thoughts one time. Yo want to be able to ensure that their free speech rights are being protected, but at the same time, you also want to make sure that they’re not being harassed and discriminated or having that negative impact at work. And sometimes it seems like those two can be a tension at odds with each other, but it’s just a fine line. You got to walk.

Aaron Holt:

Yeah. From my perspective, yes. I think most employers will have a social media policy, but it also depends upon the size and industry that the employer’s in. It doesn’t make sense for everybody. If you’re running, for example, a landscaping business or you’ve got a small number of employees like less than 20, you have to be efficient with your time and the amount of bureaucracy that you yourself can handle as a small business owner. For larger businesses, that’s not as big of a concern and social media policy might not be as high of an importance. The point here is conduct. You can still have handbook policies, for example, that provide for respectful conduct in and outside of the workplace without specifically calling out social media. And that will still apply and it’ll leave you flexibility to address different circumstances as they come in. So you don’t necessarily have to have a policy, but for the larger employers with the bigger workforces, I do think it makes sense because social media and speech can be very nuanced.

There’s ways in which speech is protected and the employers should not do anything about it. So drawing that line for your low-level managers to understand what the rules of that kind of conduct and speech regulation are is more helpful for larger employers who are going to have low-level managers who might not appreciate that and would benefit from having that kind of direction.

SaNni M-K Lemonidis:

But I would argue that even those smaller employers and those smaller businesses, the impact that social media hosting can have on a business’ reputation or brand I think can have a much more detrimental impact on a smaller business than a larger one. So having and setting that kind of baseline and understanding I think is important even for those who just have a couple of employees because I think that’s really just you’re trying to be more proactive and this isn’t defensive posturing. How do we ensure that you guys are going to be able to post your opinions online and also potentially not impact or damage our reputation or brand name?

Matt Greer:

Yeah, very interesting. And in terms of the whole category between the should category, I don’t know, does that case that you just described, Aaron, and walked us through, do you think that changes the more outward focusing social media to one of the category? Was that previously considered more of an employer could maybe regulate some of that, but now maybe this category is the guidance from the court maybe suggests that employers need to be keeping more of an eye on the outside social media conduct in case it does have an impact on discrimination in the workplace, even if it’s kind of indirect. I’m curious if you have any kind of takeaways on the teachings from that decision.

Aaron Holt:

That’s a great question. I love talking about this.

SaNni M-K Lemonidis:

He really

Aaron Holt:

Does. How I would frame it is the law didn’t change. You have the same statutes that apply to conduct that should not be a part of the American workplace. Title VII is not a new law. It is just applied to an ever technologically changing workplace. What I think a lot of employers sometimes mistakenly or managers individually will think is if something happens outside of work, then that is on personal time. It doesn’t necessarily implicate something that I need to deal with. It’s not my problem almost. The issue with that, and the problem with that that I will sometimes explain in various employer trainings is that let’s suppose you have a situation where an employee is receiving some, call it harassing treatment from coworkers. Whether or not it’s on social media or whether or not it’s at a work happy hour afterwards, it is objectionable offensive conduct that violates Title VII.

Pick your protected activity and protected category. If the employee complains about that to the supervisor, that these coworkers treated me this way, I don’t want it to happen anymore, please make it stop. And the employer’s response is, I’m sorry, that’s outside of work. It’s not my responsibility. And that conduct continues to happen and the employee eventually gets fed up with it, quits and then files suit. What do you think the fact pattern for that complaint is going to allege that I experienced this conduct, I complained about it, you did nothing, and but for you doing nothing, look at all this other conduct that I experienced that you could have prevented and that you chose not to. And that is why I try to explain this in these terms in that sometimes employers have a duty to take action based upon the content and context of speech.

And the Title VII example of harassing and discriminatory conduct should just have a red flag go up. This is something that you might need to address, but how employers address it is entirely up to them. The law doesn’t specifically have a, if this kind of conduct occurs, then this is the discipline that you need to issue. The employer’s duty is to the work environment. The obligation to the employers is to make sure that it provides as free of a workplace as free from harassing or discriminatory conduct as they can. And maybe that’s a coaching, maybe that’s discipline, maybe that’s termination. It really does depend upon that particular situation and the context of everything. For example, if it’s a manager engaging in this kind of conduct, managers have greater responsibility and authority and they should be held to a higher standard by virtue of that responsibility and authority.

SaNni M-K Lemonidis:

I think before the focus really was on where the speech was said. And now it’s really switches to where was the harm felt? So even though this is off-duty conduct, how it impacts an employee, their working conditions, it’s a consideration that can outweigh. And that’s something that it opens up that scope of what really is off-duty conduct then because we have these little computers that we bring around with us everywhere we go that we can see everything, the whole wide internet on. And so all of that information we’re taking in and communications we’re having on those group chats, that can come into the workplace and impact it there.

Aaron Holt:

And I will say the Okinowski case I think is important because it’s the first time that a circuit court has codified this kind of principle. And I think it is more of a bellwether of things to come, indication of future cases and application of law on the world that we live in. And EEOC itself and its enforcement guidance for harassment in the workplace that was issued in April of 24 specifically referenced this and they said, “Even conduct that does not occur in a work-related context can affect the terms and conditions of employment.” And as an example, they gave personal electronic communications and social media accounts. Now I will footnote that and say that that guidance was rescinded in January of 2026 of this year, but just because the guidance is – You just

SaNni M-K Lemonidis:

Footnoted yourself. That’s amazing. Well,

Aaron Holt:

I think it’s important to know that guidance isn’t out there anymore, but the guidance is just interpretation of the law. The law hasn’t changed. I think this is still going to be applied in the same way regardless of whether or not the EEOC’s website has access to this material. Yeah,

Matt Greer:

There’s definitely a lot of stuff going on that front as well lately. So maybe even a topic for a future podcast episode.

SaNni M-K Lemonidis:

Erin’s got footnotes. We got this. Yeah.

Matt Greer:

Great. So Sandy, I’m curious when you’re talking with your clients, unions and employees, I imagine that they’re probably like really that my employer can look into this off-duty, my posting on Instagram and hold me to account because I say something funny or maybe their intention is to be humorous with their little friend group, but now they’re maybe going to be held to account in the workplace. I mean, I’m assuming you get some of those kind of concerns or questions brought to you. I’m curious, how do you respond to that given those developments?

SaNni M-K Lemonidis:

I mean, absolutely. The advice I always give is knowledge is power. You’re going to have to give them the information that they need in order to be able to understand why that’s different now. And that’s really what it is. And so a lot of my clients really spend that time and effort putting in that first year training so that people really understand where that line is because there is that idea that off duty means I’m not on the clock and anything I say or do is my own… I don’t have to suffer any consequences in my place of employment because of things I do outside. It’s like that is not true. It’s not true. So the training piece is huge, definitely.

Aaron Holt:

I also think that’s a good time to maybe start talking about the second bucket of speech-related conduct, specifically the National Labor Relations Act and Section seven rights. And that is squarely within your wheelhouse, Sane.

SaNni M-K Lemonidis:

It is. That is my favorite bucket of all the buckets.

Matt Greer:

I think it’s a great transition. We’re almost halfway through our time, believe it or not. It’s going prety quickly. I wanted to incorporate a quick break here for us to put in a little plug for some of the labor and employment law section events that are coming up. So when we come back, we will delve into that because there’s a lot of stuff talk about on those other pieces too. But let’s take a break real quick and we’ll come right back. All right, and we’re back. Okay. As you both preview, let’s talk about those other laws and National Labor Relations Act and other things and how they fit into this equation. And SaNni, it sounded like you were really excited to talk about that because this is more in your wheelhouse as a union attorney.

SaNni M-K Lemonidis:

I am.

Matt Greer:

Start us off.

SaNni M-K Lemonidis:

Yeah, no. Section seven, it’s a lot broader than I think a lot of employers want it to be and frankly broader than most employees really realize it is. And so there’s a lot there that ensures that employees and what they say and do at the workplace, especially when it’s for mutual aid and they’re engaging in protected concerted activity is protected. And so often that’s what employers are immediately trying to discipline because, at least in my experience, I saw that look, Erin, because it’s usually this is conduct that is difficult.

Matt Greer:

I guess maybe Sonja, for those folks who are listening who may not know about section seven, do you want to quickly tell us what is it? Where is it in the law and what does it actually say?

SaNni M-K Lemonidis:

Oh, yes.

Matt Greer:

And who does it apply to? I think maybe that’s a question some people have.

SaNni M-K Lemonidis:

Oh, really getting into the basics. Yeah. I’m like, Erin’s the presenter. I’m the folksy one. But no, I mean, so section seven of the National Labor Relations Act grants employees the right to form, join and assist, engage in protected concerted activity to form a union. And really it’s only two people. So as long as what you’re doing involves you and someone else, you’re engaged in that concerted activity. But then the idea is, well, what exactly are you actually engaging for? What’s that aim? And so if you’re acting to try and improve your terms and conditions, your wages, improved scheduling, those are all impacting your terms and conditions of employment and therefore you have a right to discuss and make changes about those.

Aaron Holt:

Yeah. I have always tried to think about it in terms of the context in which the NLRA was passed. You’re talking about the JD Rockefeller era where the balance of power between management and employee was vastly different than what we have in today’s world. In that period of time when the NLRA was passed, there was a child labor laws. If you complained about having a child working in a coal mine, for example, for unreasonable amount of hours, then you were just fired. So they passed this law that allows employees to get together and discuss their wages, their terms and conditions of employment, criticize their working conditions, complain about managers and management styles or aspects of their work that they weren’t able to do before. And that fast-forward to today, has been used and interpreted to include social media, which is kind of relevant to our discussion here.

And that is sometimes difficult for I found employers to appreciate because insubordination is sometimes I think it gets confused and it’s subjective, which is always hard for these kind of speech-related issues because what is insubordinate to one manager might not be insubordinate to another and consistency in the application of your policies very important in employment law.

Matt Greer:

I mean, it is an interesting topic. It does come up, it seems like a lot in conferences I go to. It’s like, oh, the section seven. It did seem counterintuitive, I think, especially to some employer folks, maybe in some union and employee members who are like, “Oh, I didn’t realize that this right even existed and how broad it is. ” I think it is kind of an interesting piece.

SaNni M-K Lemonidis:

Yeah. Well, and I mean, that’s why I think the content context matters. Because a post that just says, “My boss is terrible. Let’s just be someone venting.” But if the post is like, “Our boss is cutting our hours and they’re so awful to us and we need to do something about it. ” And they get disciplined for that comment. I mean they’re having this speech and these comments with their coworkers and it can be interpreted to be for their mutual aid and protection. So it really matters how and when it’s said.

Aaron Holt:

Even the example of venting about a manager is arguably protected. The thing about the NLRA is the government agency that’s going to hear this violation, the National Labor Relations Board, is the forum. And that forum can be sometimes hard for employers to win in. And I think the Pure 60 case is a good example of that and frankly sometimes hard for employers to wrap their mind around because it has examples of what Sony was just talking about with I think venting that was spoiler alert, found to be protected. In the Pure 60 case, there was a New York, I believe it was a restaurant adjacent, maybe a catering company that was in the middle of a union election. And there was a tiff between one of the servers and his manager and he goes to social media and he says, “Such a nasty motherfucker. Don’t know how to talk to people.

Fuck his mother. Fuck his entire fucking family. Wht a loser.” And then he ends it with, “Vote yes for the union.” And he was terminated for insubordination, goes to the NLRB, and the NLRB looks at this and says, well, “The overwhelming evidence establishes that while distasteful, the respondent tolerated the widespread use of profanity in the workplace, including the words fucking motherfucker,” considered in this setting, the use of those words in his Facebook posts would not cause him to lose protections of the act. So found it to be a protected statement and ordered reinstatement with back pay, which is a very hard lesson for I think employers to take away from something that is objectively offensive and clearly venting. But adding that last line at the end of it in the NLRB’s view saved it in terms of the content and context of that speech being protected.

SaNni M-K Lemonidis:

But also if they were maybe consistent with how they treated employees who engaged in profanity, I mean you can’t let the workplace be like a pirate ship during the week and then all of a sudden during the weekend, no, no, we have to make sure that we are mining our Ps and Qs and everyone is on their best behavior.

Aaron Holt:

Right. I also think at the end of the day, it’s about respect. If someone has this kind of venting and is clearly off the rails, I don’t think an employer has to do nothing about it. Maybe the vote union gives them pause on issuing a discipline, but there’s nothing wrong with sitting the person down and saying, look, this is a respectful workplace. This is a professional workplace and we all need to treat each other with respect. So let’s talk about how we can do that moving forward. There’s nothing wrong with that. That’s not an adverse employment action if you’re just having that kind of conversation. I don’t think employers have to ignore it and at a certain point they do need to control the workplace. They do need to regulate that. That’s their obligation. No one else’s.

SaNni M-K Lemonidis:

I would even say it’s proactive in that when an employee is venting or having a bitch vest, there’s something going on at work. Something’s not working, they’re not feeling heard or seen or something. And so that should, if anything, just be assigned to management. Yeah, having this conversation now is going to help them going forward. It doesn’t have to be end of the line.

Matt Greer:

All right. Yeah, I don’t know if that brings us to maybe another topic. I saw in some of the materials that maybe we can link to in the show notes that talked about some state laws that address protecting certain conduct or speech as well that maybe some employers in certain areas should be paying atention to. I’m curious what your thoughts are on how important that is, how big that is, any developments on that front that you think folks should be aware of.

Aaron Holt:

It’s very important. We’ve been talking a lot about some of the federal employment laws just because they’re universally applicable to a lot of the listeners, but the specific state or local area that the employer is in where this issue comes up absolutely matters. There are a number of states who have specifically passed laws that codify free speech protections or prohibit an employer from taking action on speech that they view as protected, even if it wouldn’t be protected under federal law. And two quick examples, one is Connecticut, which has codified First Amendment protections for everybody, both public and private employers. That state has First Amendment free speech protections for everybody, which is unique in our republic. And then in Colorado, they have a lawful off-duties activity law, which prohibits an employer from disciplining or regulating lawful off-premises activity during non-working hours unless there’s a very specific statutory exception.

So if you can lawfully do this on your own time, then the employer has no business regulating it in Colorado. So there are very The specific state laws and sometimes local laws that are applicable here, the location that you are in matters because even if you’re compliant federally, you might run afoul of a state law. And this is especially hard for national employers who have to operate in a large geographic footprint and have a lot of competing interests that they need to keep in mind while still regulating a workforce.

Matt Greer:

Delisha, whatever your state you’re in, keep an eye on the big federal laws, but also that may not be the end of the picture. You might have state and local ordinances that come into play too that might surprise some folks, I think.

Aaron Holt:

Yeah, I also think this is maybe a good time to get into our last bucket of protection, which is the First Amendment. I think it is something everyone has generally heard of before and I think it’s overplayed in a lot of ways because – I think it’s

Matt Greer:

Misunderstood.

Aaron Holt:

Yeah, that’s a better framing. Yeah, it’s misunderstood. It provides a protected right for citizens to engage in free speech, but it applies to the government, meaning the government can’t tell you what to think or what to say with some limited exceptions, which I’ll get to. But what’s important I think for our discussion here and for the labor and employment listeners is that if you are a private employer, meaning you are not a government actor, there is no First Amendment protections for your workforce footnote. If you live in Connecticut, this doesn’t apply to you. But for example, most by and large at-will employers have wide latitude to regulate conduct both inside and outside of the workplace that violates their policies so long as they’re consistently applied. I think that is sometimes the catch is employers can’t pick and choose when they want to apply their policies.

And I would use an example during COVID of dress codes or masks, and this was especially a topic of discussion during the Black Lives Matter movement where there’s a lot of political activity. And if an employer wanted to say, look, we want no politics in the workplace, we’re not going to allow this kind of face mask or T-shirt or pin, but at the same time you are allowing, let’s say your favorite sports teams or generally free dress code, you can’t pick and choose the speech that you agree with to regulate. You could say everyone’s got to wear a blue mask or this is a customer-facing position, so we need everyone to wear this uniform or this type of clothing. And that’s fine because that’s consistently applied. It’s when you start picking and choosing the message that you agree with that employers sometimes run into consistency problems, even though that’s not a free speech issue, it’s just an application of policy issue because the people who are on the receiving end of that differential treatment will look at the other person who’s allowed to do this and say, well, what’s different between me and this person?

And there’s almost always some kind of protected category difference. Okay.

SaNni M-K Lemonidis:

Well, I think that’s one of the other considerations ensuring that whatever speech you’re trying to regulate isn’t also then going to chill those employees’ ability to exercise their section seven rights.

Aaron Holt:

And then we talked a little bit about private employers don’t have a First Amendment free speech right in your private place of employment, but what if, let’s say there are any employers out there listening who are a subdivision of the government, teachers, police officers, firefighters. There’s a lot of government employees and they do have a limited First Amendment free speech right to speak on what’s called, “A matter of public concern.” So think of something that has a greater significance to the social, political, cultural needs that the public should need to know about. And this was essentially codified in a case called Conic versus Myers, a Supreme Court case from 1983, citation 461 US 138.

Matt Greer:

God,

SaNni M-K Lemonidis:

So impressive. Love this guy.

Aaron Holt:

Well, in that case, it was an assistant district attorney, which I am also a former assistant district attorney, so I feel sympathy here.

Matt Greer:

And Jenny, wasn’t it Harry Conick Sr., The father of Harry Connick Jr., The senior, isn’t that right? I think that’s one of the little tidbits I remember hearing about somewhere along the line. Mayb I’m wrong, I hope not. But anyway, that’s always one of the little fascinating tidbits about that case it seems like. I’m

SaNni M-K Lemonidis:

Going to remember that. I love that.

Aaron Holt:

I will as well. I had not heard that, but I hope that’s true. We are big Harry Conick fans. It’s one of my wife’s favorite artists. He was great in Independence Day too.

SaNni M-K Lemonidis:

Shep’s kiss.

Aaron Holt:

The facts of Konicks versus Meyers, there was an assistant district attorney who received a transfer that she did not like and circulated a survey amongst the DA’s office about office morale, the transfer policy, whether or not it was fair, confidence in supervisors, pressure to work in political campaigns, et cetera. And the new DA came in, didn’t like that, ended up terminating her. She filed a First Amendment retaliation claim, which the trial court granted summary judgment, goes up to the Fifth Circuit, which affirmed, and the Supreme Court gets this. And they say, look, there’s got to be a balance between an employer’s right to regulate the workplace and maintain a disruption-free workplace and an employee’s right to speak on a matter of public concern. And the quote from the Supreme Court is they want to arrive at, “At a balance between the interests of the employee as a citizen and commenting on matters of public concern and the interests of the state as an employer and promoting the efficiency of the public services it performs through its employees.” And what the Supreme Court ended up holding is that the discharge didn’t violate the First Amendment because the survey was composed and distributed by this assistant district attorney that was primarily an expression of a personal grievance relating to that office policies and politics rather than something that the public needed to know about.

So it wasn’t a matter of public concern based upon the content of the speech that was used. So it was not protected activity and therefore there’s no First Amendment violation.

Matt Greer:

You see issues that kind of relate to that in your practice? I think you do some public sector work and union work, right?

SaNni M-K Lemonidis:

I do. I do firefighters. And I think we all know there’s a definite kind of culture that is pervasive in most firehouses and a lot of the speechy connections that happen at the workplace definitely become an issue. But I think with the rise of the political divisivenes, we’ve seen an increase in the type of political speech that is being used in the workplace and what is happening to those who are choosing to speak out. And maybe the message isn’t being well-liked by the city. It’s a different consideration. Yeah.

Aaron Holt:

Yeah. I mean that’s also the whole point of free speech is allowing people to speak even if it’s not the party’s message, even if it is not something that you might agree with. There’s a great quote from Ben Franklin, “I might disagree with what you say, but I would defend to the death your right to say it. “

Matt Greer:

Great. I know we’re getting close to our time, but we didn’t touch on that. I know that in my mind there were some recent events that have happened where I feel like this has come up. I feel like in the public sector, police, especially in the law enforcement world around the George Floyd type situation, there was a lot of stuff going on with social media on that front. And then also Charlie Kirk, the whole situation with the assassination of Charlie Kirk, there was some stuff going on with that too. So I don’t know if we have time to get all the way into the details on that, but I’m just curious if you have any tips for folks when you’re dealing with those heat of the moment situations that come up and people say things on social media. It’s like, oh gosh, okay, that was maybe in the context of that moment made sense to them, but in retrospect, problematic.

And I don’t know if you have any thoughts on those kinds of situations, which I feel like we’re seeing just more and more of these days.

Aaron Holt:

I have a lot of thoughts on them and I’ll try to keep my comments specific to practical information that employment practitioners can utilize, whether or not that’s as an attorney or as an HR professional in – house. So the decision tree, when I’m looking at a particular comment on social media or free speech-related issue, there’s a couple things that you want to keep in mind. First, do you have a copy of this tweet or of this post? Social media is user-controlled content. So just because it exists one day doesn’t mean it’s going to exist there tomorrow. If someone knows that they’re being investigated, one of the first things they might do is delete it. Second, does this particular post relate to wages or working conditions? If so, it’s going to be implicated by the National Labor Relations Act. That’s something that a little red flag should go off and say, is that protected?

Third, would this post be considered harassment if it said face-to-face? For example, the water cooler principle that we talked about earlier? If so, then it doesn’t necessarily matter the venue that it’s communicated in. The factors that courts look at when evaluating a hostile work environment or the frequency of the conduct, severity of the conduct, whether or not it’s physically threatening or demeaning, whether or not the conduct interferes with the employee’s work performance. It doesn’t look at where the comment was said. Fourth, who’s the author? If it is a manager or supervisor, they should be held to a higher standard. They are given authority and responsibility and that authority and responsibility comes with an expectation of conduct. And if they violate it, the employers should be quicker to discipline and regulate a manager who’s engaging in this kind of conduct. We’ll also note that managers, the ability to hire and fire are generally not protected by the National Labor Relations Act as supervisors.

So they’re not going to have that same kind of protection.

Last is what’s the context? I always try to tell employers to take a breath, step away and think about it if you’re really strongly considering either termination or a heavy discipline. Sometimes it’s easy to get caught up in the emotion of it, especially when we’re talking about speech related conduct, and especially if the person making the decision is the one also who’s the target of the speech. I think that can sometimes cloud judgment a little bit. And there is a right in some circumstances where employees have every right to say what they want to say, even if we might not agree with it. And I think you’ve seen a lot of that come out in some of the examples that you gave, Matt. Charlie Kirk is a good example. And the thing about a lot of the Charlie Kirk stories is most of those have involved people at public institutions and those public institutions like universities for example, they have reporting requirements as to what happens with their litigation.

So you can see the outcomes of a lot of those situations, whereas you might not have that kind of visibility into private employers. But just because an employer might disagree with that message isn’t by itself a reason to take action on it. It’s got to violate one of your policies. You’re going to have to be able to point to some specific work disruption. How has this actually disrupted your workplace such that you need to take action? Does it actually violate any policy? If you can’t point to a policy that this comment or speech or post violated, then that should be at least a factor you consider in your decision-making before firing off a discipline or a termination.

SaNni M-K Lemonidis:

I think so many bad analyses start with that, do we like the message? Is this something they focus more on that content there instead of taking that step back? Okay, what legal category are we talking about? This speech might fall into and what protections and obligations might we have as a result of that? But I think I represent unions as employers and they can get very caught up in the moment and those emotions can really cloud that judgment. Taking a moment to take a step back is really going to be helpful because man, it’s not easy.

Matt Greer:

Yeah. I think you used the word messy earlier. I think some of these situations, they definitely – So

SaNni M-K Lemonidis:

Messy.

Matt Greer:

Quickly get into a surprisingly complicated type of analysis certainly. So I think you’ve done a great job. Both of you of getting some tips and some frameworks to be thinking through that stuff. So we are getting close to the end of our time here. I do want to thank you again, both of you, for taking the time to chat with us. I learned a lot, certainly a lot of things that I didn’t really think through as much before, and I really appreciate you sharing that with us. As we close out, I just wanted to see, do you have any closing thoughts or final tips for anybody as we end our conversation here? Maybe in particular, would you give a tip to the folks on the other side of the table from you? If YoSaNni, what do you think that employers should know from your perspective about how they should handle these situations and vice versa for you?

I like this question. Yeah. Maybe do a little topsy-turvy. What advice would you give to the other side?

SaNni M-K Lemonidis:

I think rather than seeing these issues as a risk management issue, it should be more collaborative. I think for it to be more effective, reaching across the table and wanting to involve labor in these types of conversations about how we’re going to be regulating things I think is important. It’ll save so much heartache. Unions just want to have a seat at the table. And if you provide that, you just save so much heartache. People get caught up on this. We don’t have to, this isn’t our obligation. Yeah, maybe not, but it might be good for morale. It might be good for business.

Matt Greer:

Great tip. What about you, Aaron?

Aaron Holt:

From my standpoint, and I think I’m probably aproaching this differently than Saay, but I think the point is the same, is that sometimes in the union context specifically, I see a lot of assumption of ill intent. It’s easy I think to categorize the employer or the government as this big bad entity. So it’s easy to point to conspiracy or some type of misconduct or ill intent that isn’t always there. Sometimes employers might just make a mistake or sometimes no, we just can’t do this and there’s not a more complicated or nefarious reason for that. I agree with So’s point about the best labor relations that I’ve seen are ones where the parties are rowing together towards the same goal, which could be just operational efficiency or making the business as competitive as possible. And I think sometimes the battle lines of us versus them in terms of a mentality can be really counterproductive to a lot of relationships and that bleeds over into every aspect of the workplace, unfortunately.

SaNni M-K Lemonidis:

Agreed all caps.

Matt Greer:

Great tips. Great tips. Definitely good advice there. Apreciate you doing that. So thank you again for joining us. This was a great conversation and I also wanted to take a moment to thank our listeners as well. I hope you found the conversation as interesting and informative as I did. And if you did, give us a follow-up on your favorite podcast player and help us spread the word by sharing the show with your friends and colleagues. Talk to you next time.

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