May an Employer Discipline an Employee for Off-Duty Social Media Activity?

In today’s digital age, social media has blurred the lines between personal and professional lives. A post made outside of work hours can quickly become visible to colleagues, clients, and the public, sometimes causing workplace disruption or damaging an employer’s reputation. This raises a critical question: Can employers discipline employees for their private social media activity?

A recent case from the U.S. Court of Appeals for the Seventh Circuit, Schneiter v. Carr, though focused on public employment, offers valuable insights for private employers.

Background: Employee Social Media Activity in Schneiter v. Carr

The case involved a deputy warden for a state department of corrections. The local newspaper reported that he had posted offensive Internet memes on his private social media page, disparaging Muslims, Black people, liberals, and the LGBTQ community.

Following an investigation, the employer terminated his employment, citing security concerns, diminished public trust, and doubts about his ability to lead without bias.

The employee filed a federal lawsuit, alleging that the state’s secretary of corrections had fired him in violation of his First Amendment right to free speech and his Fourteenth Amendment right to due process.

The federal trial court ruled in favor of the secretary of corrections on all claims, and the employee appealed the trial court’s ruling to the U.S. Court of Appeals for the Seventh Circuit.

The Seventh Circuit’s Opinion

The Seventh Circuit rejected the employee’s claims.

Regarding the First Amendment claim, the appellate court acknowledged that public employees’ speech on matters of public concern, when made as private citizens, might be protected. However, the court found that the employer’s interest in maintaining safety, order, and public trust outweighed the employee’s free-speech rights, especially given his high-level position.

On the due process claim, the employee argued that the employer’s rules did not clearly warn him about the consequences of his off-duty social media activity. The court noted that the U.S. Constitution does not require a governmental employer to have a specific social media policy to discipline an employee for social media posts. General rules about inappropriate conduct can provide sufficient guidance.

Implications for Private Employers

Although this case involved a public-sector employee, its implications extend to private employers, despite the fact that constitutional free-speech and due process protections do not generally apply in private workplaces.

Here are some key takeaways for employers:

Employee conduct and employer rights: Employers have a legitimate interest in maintaining harmonious, discrimination-free workplaces and protecting their reputations. If an employee’s private social media activity negatively impacts the workplace or the employer’s public image, the employer can—and sometimes must, under anti-harassment laws—take action. This is especially true for high-level employees whose conduct can significantly affect an organization.

Policy and communication: While a specific social media policy is not required to take action against an employee, having one can provide clear guidance on expectations and consequences. Employers should consider developing comprehensive social media policies to minimize ambiguity and ensure employees understand the potential repercussions of their online behavior.

Social Media Policy Issues

Creating a social media policy involves navigating various legal issues, even for private employers. Here are some considerations:

Off-duty conduct laws: In the United States, the doctrine of at-will employment generally allows employers to discharge employees at any time, with or without cause or notice, except in Montana, which requires good cause for terminations outside of probationary periods of employment. However, this discretion is not unlimited. States like California, Colorado, New York, and North Dakota prohibit employers from firing employees for lawful off-duty activity. In these states, an employee’s legal conduct outside of work, including social media activity, is protected unless it crosses into unlawful behavior or violates specific workplace policies.

State-law free speech protections: While the First Amendment does not apply to private employers, some states, such as South Carolina and Connecticut, have enacted general free-speech protections that extend to the private workplace, provided the speech is not disruptive. Even in these states, the right to free speech is not absolute. Employers can still act if the speech, including social media activity, negatively affects the workplace.

National Labor Relations Act (NLRA): The NLRA protects employees’ rights to engage in concerted activities regarding the terms and conditions of their employment. Social media posts discussing workplace issues, such as pay or working conditions, may be protected under the NLRA, even in non-union workplaces. Employers should ensure their policies, and the enforcement of such policies, comply with the NLRA.

Conclusion

Employers have a legitimate interest in maintaining safe, respectful, and productive work environments. Nevertheless, they must navigate a complex web of legal protections for employee speech and conduct.

Developing an effective and legally compliant social media policy, along with prompt and consistent responses to policy violations, can help to minimize legal risk and foster a positive workplace culture.

Schneiter v. Carr, No. 22-2137 (7th Cir. 7/31/25).

Labor and employment attorney Jesse R. Dill contributed to this article.