Ninth Circuit Reaffirms Employee Speech Protections — and Social Media Policy Lessons for Employers
Ninth Circuit Reaffirms Employee Speech Protections — and Social Media Policy Lessons for Employers
A few months ago, the Ninth Circuit issued NLRB v. North Mountain Foothills Apartments LLC, upholding the Board’s finding that terminating an employee for discussing wages and working conditions with coworkers was an unfair labor practice. The decision is straightforward as a matter of law — Section 7 protection for wage-and-conditions discussion — but it lands at a moment when employer social media policies are under intense scrutiny.
The NLRA still protects concerted activity online, period. Stericycle (2023) presumes a workplace rule unlawful if a reasonable employee could read it to chill protected activity — and that presumption is hard to rebut without showing both a legitimate substantial interest and narrow tailoring. Lion Elastomers (2023) tells employers to assess potentially abusive social media posts in context, not in a vacuum.
Until the new Board reconsiders those decisions, they are the law. The Ninth Circuit just reminded everyone that even in an enforcement-uncertain moment, courts will enforce Section 7 robustly.
What employer social media policies need to look like right now:
* Acknowledge openly that employees will talk about work online. A policy that pretends they won’t reads as overreach.
* Name the legitimate interests you’re protecting: customer privacy, trade secrets, securities/HIPAA compliance, anti-harassment policy. Tailor each rule to one of those interests.
* Prohibit conduct that is already unlawful (true threats, harassment, discriminatory slurs) rather than “all negative commentary.”
* Define confidential information narrowly, with concrete examples. “Don’t discuss internal information” sweeps in wages and working conditions and is presumptively unlawful.
If you’re going to restrict photography/recording, tie it to specific safety or privacy obligations and carve out protected activity and lawful whistleblowing.
Make clear that personal social media accounts are different from official brand channels; require disclaimers when employees identify themselves as working for the company.
The imagined scenario every HR team is running through right now: an employee posts a TikTok about understaffing, then a screenshot of an internal safety audit, then accuses a supervisor of theft. Three posts, three different legal answers. The first is almost certainly protected. The second turns on whether the document is genuinely confidential or just internal noise. The third depends on whether the accusation was knowingly false.
Gather facts first. Discipline second. Assume online speech is a TikTok away from being protected.
How current is your social media policy — and when did your managers last get trained on what they can actually do about a viral employee post?