Over the past 10 days, a series of high-profile firings and suspensions have occurred due to individuals making comments about the fatal shooting of conservative figure Charlie Kirk.

For example, ABC indefinitely suspended Jimmy Kimmel after he made comments about the alleged gunman on his talk show. MSNBC also fired Matthew Dowd over comments made on his show, but social media posts also appear to be a major catalyst for employment actions.

The Washington Post fired Karen Attiah. A hospital in Virginia, Riverside Walter Reed, reportedly fired an anesthesiologist; a Children's Healthcare hospital in Georgia also fired a healthcare employee. Additionally, according to U.S. Transportation Secretary Sean Duffy, American Airlines employees were removed for 'celebrating Kirk's assassination.' Employees at Clemson University, Cumberland University, The University of Mississippi, and Middle Tennessee State University were also fired for Kirk-related online comments.

Experts note that these high-profile actions remind employers of the critical importance of having robust social media policies—similar to the advice given after the protests over the murder of George Floyd and the Israel-Hamas war.

Developing best practices for handling employee comments

'What is said outside of work often becomes relevant at work,' Sam Schwartz-Fenwick, a partner at Seyfarth Shaw and head of the firm's Culture Conflict Points group, told HR Dive. Sometimes colleagues see social media posts and report them to management; sometimes the public sees viral posts and doxxes the author.

Schwartz-Fenwick said the uproar surrounding the Charlie Kirk shooting 'is just the latest example of inappropriate or ill-considered comments going viral and leading to employment actions. It's helpful to put it in that context because it allows employers to think: 'How have we handled these types of issues in the past?''

Past handling of similar situations can be a good starting point: Schwartz-Fenwick not only pointed to employer responses to comments about the Floyd murder and the Israel-Hamas war, but also mentioned inflammatory remarks made early in the COVID-19 pandemic: when Asian American advocacy groups and Jewish heritage groups both noted a rise in racist sentiment and hate crimes due to alleged COVID-19 conspiracy theories, employers found themselves needing to intervene. HR professionals can find guidance in how employers have handled such issues in the past.

Weighing off-duty conduct

Although social media is full of discussions about free speech laws, Andrew Zelman, a partner at Berger Singerman, said these protections typically do not shield private-sector employees from adverse employment actions.

He told HR Dive via email that private employers have the right to terminate employment based on social media posts or comments without violating these laws.

However, there are still HR considerations beyond the First Amendment: 'What you have to be careful about before making an employment decision is whether you are in a state that has protective rules regarding off-duty conduct and political speech,' Schwartz-Fenwick said.

'You want to make sure that any action you are considering taking does not violate those state laws. Often, calling for violent attacks on anyone is completely outside the scope of legal protection,' he continued, adding that HR professionals need to 'look at the context' to determine whether a post can be interpreted as political speech.

Considering the implications of the National Labor Relations Act

Both attorneys said HR may also need to consider protections under the National Labor Relations Act. This law protects workers' rights to engage in 'concerted activities' related to collective bargaining or mutual aid.

'Certainly, under the Biden administration, the National Labor Relations Board took a very broad view of what constitutes terms and conditions of employment,' Schwartz-Fenwick said.

For example, the existence of the Black Lives Matter movement could be seen as a social issue. But, he said, wearing BLM gear can be a way to call out racism in the workplace. The Biden-era NLRB made such a ruling in a Home Depot case involving BLM stickers on aprons.

'It is unclear whether the Trump board will continue with that broad approach, if they get a new board,' Schwartz-Fenwick said of the current state of NLRA interpretation. 'How far that extension can go is still a gray area.'

Pursuing thoughtfulness and clarity

'For many employers, nothing is more valuable than having a culture of free speech and broad discussion in the workplace, and they are very reluctant to undermine that,' Schwartz-Fenwick said. 'Employers with that view may want to develop a very precise policy, limited to prohibiting speech that violates anti-harassment or anti-discrimination policies.'

Other companies may need to write what Schwartz-Fenwick calls 'reputational harm' into policy—especially when employees post on accounts bearing the employer's name or appear to be acting on behalf of the company.

'You want to make sure these exceptions are clearly spelled out in the policy,' Schwartz-Fenwick said.

Zelman added that any such policy should include clear statements that 'violation of the social media policy will result in disciplinary action' and that 'the company enforces the policy consistently.'