In the Age of Information, a constant barrage of social media moments, viral posts, TikToks and the like has become an unescapable part of society. Each new current event is likely to result in online discourse that permeates into every area of our day-to-day lives. To some, these posts seem personal and private, but an employee’s online activity can quickly extend into the workplace. For banks and other financial institutions where reputation, regulatory compliance and public trust are paramount, a single employee post can do serious damage to an institution’s bottom line.

But how far can a private employer in the financial sector go in disciplining an employee for something they posted on their personal page? The answer depends on the content of the post, the applicable laws and how the institution responds.

The First Amendment Does Not Apply to Private Employers

When employers seek to address employee personal, off-the-clock online activities, employees will often argue that their “free speech rights” are being violated. While this is a very common misconception, the First Amendment limits government actions, not those of private employers. Essentially, First Amendment protections are not absolute, and private entities are not prevented from setting their own rules related to speech.

A private company can generally take action if an employee posts offensive, discriminatory or disparaging comments that conflict with the organization’s values, even if the post was made outside of work hours. For example, if a loan officer at a regional bank posts inflammatory political comments on a personal Facebook page and identifies herself as a bank employee in her profile, the bank can generally discipline her if the post damages the bank’s reputation or violates its code of conduct. There’s no constitutional shield in the private employment context.

Reputational Harm Is a Serious Risk in the Financial Industry

Financial institutions rely on public confidence. Even off-duty conduct can undermine that trust. Consider this real-world scenario: A customer service representative at a bank publicly posts a TikTok video mocking a customer’s financial habits. Even without naming the individual, the video references the branch location. The post goes viral, drawing local media attention. While this was done on personal time, on a private account, the bank can discipline the employee for breaching confidentiality and damaging the institution’s reputation.

Social Media Policies Are Foundational

Institutions should have clear, consistently enforced social media and code of conduct policies that identify the institution as a private employer and clearly define expectations for off-duty conduct. Common policy prohibitions include:

• disclosing confidential or customer information;
• making discriminatory, harassing or defamatory statements;
• using the institution’s name or logo inappropriately;
• implying official representation without authorization; and
• engaging in behavior that could harm the institution’s reputation.

Having a clear policy not only gives employees notice, but also provides legal backing when discipline is challenged.

Some Legal Protections Still Apply

While institutions do have broad discretion, some off-duty speech is legally protected:

• NLRA-Protected Concerted Activity: Employees have the right to discuss wages, working conditions or management practices, even on social media. For example, if a group of tellers posts on Facebook criticizing unsafe working conditions or pay practices, disciplining them may violate the National Labor Relations Act, even in a non-unionized institution.
• Whistleblower Protections: Posts that raise concerns about fraud, discrimination or violations of financial regulations may be protected under whistleblower or anti-retaliation laws. For example, if an employee posts concerns about a bank’s compliance with anti-money laundering laws, disciplining that employee could trigger regulatory scrutiny.
• State Off-Duty Conduct and Social Media Laws: Some states limit discipline for lawful political or recreational activity outside of work. Institutions operating in multiple states should be mindful of these variations.*

Weighing Response and Risk

Even when discipline is permissible, financial institutions should assess the impact and proportionality of their response. Questions to consider:

• Does the post identify the institution or implicate its business?
• Has it been shared widely or caused reputational harm?
• Does it involve protected activity or whistleblowing?
• Has the policy been applied consistently in similar situations?

For example, a bank might issue a warning for a minor, ill-advised political post, but terminate for a breach of confidentiality or discriminatory remarks linked to the institution. Consistency is critical to avoid claims of unfair treatment or discrimination.

Best Practices for Financial Institutions

To manage these issues effectively:

• Maintain clear, legally compliant social media policies tailored to the financial industry’s heightened reputational and regulatory risks.
• Train employees regularly, emphasizing confidentiality, professional conduct and online representation of the institution.
• Involve legal and compliance teams early when evaluating posts that may involve protected activity or regulatory issues.
• Document disciplinary decisions thoroughly to demonstrate legitimate, non-discriminatory reasons for action.
• Apply policies consistently across roles and levels of seniority.

For banks and financial institutions, the stakes of employee social media activity are uniquely high. While private employers have significant latitude to discipline posts that violate policy or damage reputation, these issues demand consistent, thoughtful enforcement.

As with many modern legal issues, this area is constantly evolving. Employers should stay informed and consult with experienced legal counsel to assist in navigating uncertain territory.