How to Respond to Employees' Social Media Posts on the Israel-Hamas War

​Social media lit up following the Oct. 7 terror attacks by Hamas on Israel, and it has remained fraught during the Israel-Hamas war. Posts supporting the war have led to friction between some employers and employees—particularly when those posts seem to celebrate violence.

In just one example, an aesthetician at a salon in Columbus, Ohio, posted a photo in her Instagram Stories of a Palestinian man raising the Palestinian flag atop an Israeli tank. The woman, a Yemeni Muslim, also shared a screenshot of a post on X, formerly Twitter, that said, "Gaza just broke out of prison," The Cut reported.

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The salon's owner is Jewish, and her husband has two friends who were taken hostage by Hamas. After the worker was reprimanded by her manager and told not to post anything about the war on social media, she deleted the posts from Instagram and posted a less controversial message of support for Palestinian friends and fellow Arabs. The next week, the salon owner, who posted incendiary comments about Hamas on a personal Instagram page, came in to say she was disturbed by the worker's post. The worker, who said she felt like she was being censored, asked for a termination letter the next day.

Can employers lawfully fire a worker based on social media comments? Often, yes, if they're hostile, but employers should keep in mind certain exceptions to the employment-at-will rule and be sure to investigate the posts in question.

"The reality is that private employers have wide latitude in disciplining and firing employees for social media activity," said David Siegel, an attorney with Grellas Shah in Cupertino, Calif.

However, Jonathan Segal, an attorney with Duane Morris in Philadelphia and New York City, cautioned employers to be aware of several exceptions to the at-will rule, including:

• Political speech statutory protections in some states, such as California and New York, and common-law protections, such as causes of action for wrongful discharge.
• State laws protecting off-duty conduct.
• The just-cause standard for union employees under collective bargaining agreements, executives under employment agreements, and workers in Montana, which does not follow the at-will rule.
• Federal and state prohibitions on discriminatory profiling of employees based on race, ethnicity, religion or national origin.
• Constitutional protections for public employees and state constitutional protections, such as those in California, for private employees.

"There must be consistency in the treatment of hate speech," Segal said.

Investigations Require Time

Don't impulsively terminate an employee or take someone else's word about the substance of the social media post in question. Take time to review the post, if possible, and what it's really saying.

"Managers need to keep their eyes and ears open to, and respond decisively to, negative or disparaging comments about Israelis and/or Jews," Segal said. "Employers need to be careful not to conflate support of terrorism with advocacy for greater rights for the Palestinian people. Taking adverse action against an applicant or employee solely for advocating for greater rights for the Palestinian people is legally dicey and culturally wrong."   

If the post was configured to private settings, the employer may not access it, according to the federal Stored Communications Act. Nonetheless, an employer may formulate a request for the worker to share a private post to minimize the risk that they felt pressure to provide it, Segal said. There is some risk that even this would be deemed unauthorized access to the post, but there also is risk in not taking this step.

"There is a big difference between 'Let me see it' and 'It would be helpful if you're comfortable sharing it,' " he said.

Credibility determinations may have to be made in how the employee responds during the investigation, and then HR professionals will have to make the best judgment call they can, Segal added.

The key is to ensure that inappropriate conduct on social media does not create a hostile work environment for other employees and does not compromise the employer's reputational interests and values, said Daniel Prywes, an attorney with Morris, Manning & Martin in Washington, D.C.

Protected Concerted Activity

Some social media posts may be protected concerted activity covered by the National Labor Relations Act (NLRA), but that wouldn't include posts in response to the militant attacks and Israel-Hamas war if they could be considered violent.

"Employees have the right under the NLRA to discuss working conditions and issues concerning potential unionization, but speech that is hateful, defamatory or violent should not be allowed," said Chris Duke, an attorney with Akerman in West Palm Beach, Fla.

However, "first-time, insensitive posts by an employee that are not necessarily hateful may best be addressed by asking the employee to remove the insensitive comment and receive counseling," Prywes said.

The National Labor Relations Board (NLRB) has issued guidance describing situations when a post was considered to be protected concerted activity, said Michelle Johnson, an attorney with Nelson Mullins in Atlanta. She noted these include:

• Employee posts commenting about a co-worker's allegations that their job performance was poor.
• A salesperson's posting of photographs and commentary criticizing an employer's sales event.
• Posts criticizing an employer's tax withholding practices.
• Posts complaining about promotions, transfers and reprimands.

"Public comments about wages, benefits, working conditions and supervisors are especially likely to be considered protected under the NLRA," Johnson said.

Brushing Up on Employer Social Media Practices

During this tense time, some employers may revisit their social media practices.

Be sure to have a social media policy that addresses how you will handle employee social media posts, and make sure employees know about the policy. "It is generally better not to be in a position of feeling the need to force employees to remove posts or to discipline an employee for their online posts," Siegel said.

Social media problems can be mitigated by creating social media policies and training employees on them. Policies about not using the employer's name or tagging the employer in posts on certain subject matter can be helpful.

"It is common but almost always a mistake for an employer to respond to an inappropriate post online," Johnson said. "The response will elevate the post's credibility, add to public interest in the post and lead to additional posts."

Employers also shouldn't discipline employees under a courtesy or nondisparagement policy if they post unflattering tweets about the company, Johnson said. Such use of a company policy might result in a challenge that is lost before the NLRB.

Prywes also cautioned employers not to:

• Overlook an incident and take no action.
• Take disciplinary action or make public announcements without first attempting to consult with the employee to understand their perspective.
• Drag out the response.