What Are An Employee’s Rights On Social Media?

Photo: Esther Vargas

Recently, ESPN suspended host Jemele Hill for what the company is saying is the second violation of ESPN’s social-media guidelines.

If you strongly reject what Jerry Jones said, the key is his advertisers. Don’t place the burden squarely on the players. https://t.co/Gc48kchkuv

— Jemele Hill (@jemelehill) October 9, 2017

Just so we’re clear: I’m not advocating a NFL boycott. But an unfair burden has been put on players in Dallas & Miami w/ anthem directives.

— Jemele Hill (@jemelehill) October 9, 2017

If fans really are that upset about what JJ & Stephen Ross have done, don’t call the players sellouts, but you’re watching every Sunday.

— Jemele Hill (@jemelehill) October 9, 2017

CNN’s statement on her suspension references her September tweet calling President Trump a white supremacist.

Her suspension raises some questions, specifically about whether ESPN is within its rights to discipline an employee for speaking out on social media about political issues — albeit political issues that intersect with corporate interests.

“The baseline is that you don’t have First Amendment protections in private-sector employment,” says David Wachtel, an attorney at Trister, Ross, Schadler & Gold in Washington. “You can be fired for activity on social media.”

However, he notes that companies should have social media policies in place that are part of employee handbooks — so if you are speaking out on Twitter but still in compliance with the specifics of the policy, you may have a case for breach of contract if you’re fired. (Whether you have the stomach for that is another matter.)

“Social media policies usually include something like ‘You don’t say you speak for us unless we say you speak for us.’ That’s what the Hill blow-up was the first time around. And they may also say you can’t say anything that hurts the business — and ESPN may say if you’re saying ‘boycott sponsors,’ you’re saying ‘boycott ESPN,’” says Wachtel.

In September, after the white supremacist tweet, the New York Times ran a story on a Connecticut statute (ESPN is based in Bristol, Connecticut) that “provides free-speech protections beyond the First Amendment, making it illegal for ESPN to punish Hill, according to some labour lawyers.” It also notes that ESPN has encouraged its hosts to comment provocatively on cultural issues.

However, the statute offers a caveat: “Provided such activity does not substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and the employee.” An argument can be made that Hill’s tweet does substantially interfere.

So what can an employee do to protect herself (besides not speaking publicly on any cultural or political matters at all?) Wachtel says: “You can protect yourself by following the social-media policy. If the policy allows you to [speak freely], you may have a couple of different legal arguments [if you’re disciplined], like breach of contract. The best inoculation is to follow social media policy like it’s a contract.”

So there’s no predicting if Jemele Hill will keep a lid on her political opinions, now that she’s been suspended. For some employees, the right to speak freely about pressing matters of public concern might be more valuable than a job.