Many employers have social media, code of conduct, and respectful workplace policies designed to support a productive work environment and protect the organization's reputation. As employees increasingly share their views on political events, social issues, and government actions through social media and other public platforms, HR professionals are often faced with difficult questions about the limits of employee speech.
When can an employer take action based on an employee's off-duty comments? What role do company policies play when public statements create workplace disruption or reputational concerns? When comments include false or damaging claims about others, could the employee face potential defamation liability? Understanding where employee rights and employer interests intersect is becoming an increasingly important challenge for HR leaders.
To help protect individuals from lawsuits intended to silence or discourage lawful expression, the Uniform Public Expression Protection Act (UPEPA) was developed as model legislation for states, and potentially Congress, to adopt. States that enacted similar protections commonly did so through Strategic Lawsuits Against Public Participation (SLAPP) laws, often referred to as Anti-SLAPP laws. On March 24, 2026, Michigan became the 39th state to enact Anti-SLAPP legislation, providing legal protections and remedies for individuals who face lawsuits arising from the exercise of their First Amendment rights on matters of public concern.
Under this law, if an employer sues an employee for defamation, the employee can move to dismiss and even get court costs. Depending on the state, the Anti-SLAPP laws range from very strict, such as in Texas, California, and New York, where employers must establish they have a substantial basis in fact and law before filing a lawsuit targeting employees’ protected speech or public petition and participation, to more lax, such as in Massachusetts, where Anti-SLAPP motions are limited to cases involving petitioning the government.
On the other hand, if an employer decides to terminate the employee, that is a different issue. If the speech is considered to fall under Section 8A of the National Labor Relations Act, the employee could file an unfair labor practice, union or nonunion employee note, and get their job reinstated. Yet, if the speech seemingly crosses the line, the employer could be allowed to terminate.
For example, in McVey v. Atlanticare Medical System the New Jersey Appellate Division held that the medical system acted lawfully in terminating the employment of a corporate director for having posted on her personal Facebook account racially insensitive comments about the Black Lives Matter movement that violated the employer’s social media policy. In Cooper v. Franklin Templeton Invs. the U.S. 2nd Circuit Court of appeals dismissed an appeal by a woman who had been terminated by her employer after a video of her making a false police report went viral on social media. This case was the dog walking case in Central Park claiming an African American man who was bird watching was threatening her. A video of the incident supported him and she was fired.
Given the recent situation at Temple Israel, the largest reformed synagogue in Detroit area and the U.S., comments could be made that are either anti-Semitic or anti-Muslim. Employers need to clamp down on employee speech in this situation as hate speech is not protected work speech. Or speech that echoes “the river to the sea” speech, which was on many campuses, is not innocuous speech and needs to be dealt with.
Recent events at a Ford manufacturing facility illustrate the complexities employers can face. An employee made loud comments regarding President Trump during a company visit, raising questions about whether the speech was protected. Because the President's visit was connected to workplace matters, an argument could be made that the comments were protected under Section 8(a) of the National Labor Relations Act, although that determination would depend on the specific facts and circumstances. In this case, the employee was suspended for 30 days and subsequently returned to work, highlighting the need for employers to carefully evaluate both workplace policies and potential legal protections before taking disciplinary action.
An ounce of prevention is worth a pound of cure. HR should provide respectful workplace training and establish clear protocols for addressing situations in which employee speech or conduct requires intervention.
Source: Squire Patton Boggs 3/17/26, Levy Employment Law 11/9/2023