The recent assassination of conservative activist Charlie Kirk has ignited a national conversation—not just about politics, but about the boundaries of employee speech and employer response in the workplace. In the days following Kirk’s death, a wave of firings and suspensions have swept across industries, with employers acting swiftly to distance themselves from employees whose public statements about the tragedy were seen by some as insensitive, inflammatory, or reputationally damaging, regardless of the political viewpoint expressed. In assessing whether to discipline or terminate an employee for statements made publicly on personal social media, employers must consider constitutional rights, the National Labor Relations Act (NLRA), anti-discrimination laws, off-duty conduct laws, and social media privacy laws.

Legal Landscape

While embattled employees may claim a “right” to free speech, the First Amendment does not apply to most private employers. Unless other laws provide protection, private employers generally have broad discretion to discipline or terminate employees due to their speech.

Federal law prohibits discrimination and harassment based on protected characteristics, including race, color, national origin, religion, sex, gender identity, sexual orientation, pregnancy, disability, age, genetic information, and veteran status. Some states and localities provide additional protections to varying degrees for individuals, including express protections for political beliefs and activities. Employers have an affirmative duty to prevent discrimination and harassment. And, sufficiently severe and/or pervasive offensive speech may be prohibited harassment.

The NLRA protects employees’ rights to engage in concerted activity for the purpose of mutual aid or protection, covering both union and non-union employees. However, these protections do not extend to managers or independent contractors, nor do they shield threats of violence, conduct undermining managerial authority, defamation of the employer, or other activities that render an employee unfit for work. The National Labor Relations Board has not fully assessed how these standards apply to online communications, but recent decisions indicate that the NLRA may protect private speech if there is a nexus between the conduct and workplace issues.

While there is no federal law on the subject, some states, including California, Colorado, and New York, prohibit employers from taking adverse actions against employees for off-duty conduct. For example, Cal. Lab. Code § 96 allows employees to bring claims for “lawful conduct during nonworking hours away from the employer’s premises,” and §§ 1101-02 prohibit employers from preventing employees from engaging in politics, from controlling or directing their political activities or affiliations, and from coercing or influencing employees to follow any particular course of political activity or action.

Finally, there is no federal law on social media privacy, although many states such as California, Colorado, Illinois, Maryland, Nebraska, Tennessee, Virginia, and Wisconsin limit an employer’s ability to request or require access to employee social media, but exceptions often exist for requests related to investigating misconduct and for publicly available posts.

Best Practices for Employers

While there is limited law directing an employer’s exact actions, there are best practices for how to react to divisive events impacting in the workplace.

1. Disagreement versus Disruption and Violence
   • Employees will not always agree, and a diversity of viewpoints is inevitable. Whether speech warrants discipline hinges on whether it causes workplace disruption or crosses into threats of violence. Employers must ensure uniform treatment of speech to avoid discrimination and harassment claims. The most cautious approach is to only discipline or terminate an employee for threats of violence.
2. Clear Policy, Consistent Enforcement
   • Develop and maintain clear policies addressing workplace conduct, social media use, and harassment. Provide regular training, and require employees to acknowledge receipt and understanding of these policies. Inconsistent enforcement can lead to claims of discrimination and create significant legal exposure. If similar incidents have been handled differently in the past, be prepared to explain both why discipline (or no discipline) is being imposed, and why a particular degree of discipline is appropriate. Consistent enforcement not only fosters a fair and respectful workplace culture, but also significantly strengthens an employer’s position if faced with legal challenges. Now is an ideal time to review and update all applicable policies.
3. Assess Reputational Risk
   • Legal considerations are only part of the equation. The decision to discipline or terminate an employee for speech may affect an employer’s reputation, especially in the context of high-profile, nationally significant events. Action on either side may impact customer and employee perception. Employers should carefully consider the potential reputational impact from all perspectives before acting.
4. Context Matters
   • Not every controversial statement warrants discipline or termination. Assess the content, intent, and impact of the speech. Is it hate speech, a threat, or does it undermine workplace safety? Or is it a personal opinion expressed outside of work? Context is critical in making sound, defensible decisions.

Conclusion

In today’s polarized climate, high-profile events can quickly become workplace problems. Employers should be prepared to act thoughtfully and consistently when employee speech threatens to impact business operations or reputation. Clear policies, consistent enforcement, and careful consideration of the facts and legal landscape are essential tools for navigating these challenging situations.