Employers Wrestle with Workers’ Controversial Social Media Posts in the Wake of Kirk Murder
Over the past few weeks, Americans have struggled to make sense of the shocking, horrific murder of political activist Charlie Kirk on the campus of Utah Valley University. Employers across the nation have found themselves facing a familiar question in an unusually volatile setting—how to respond to personal social media posts by employees that may be insensitive or inflammatory, especially on politically-charged issues. Multiple media outlets have reported on companies terminating employees who posted reactions to Kirk’s murder or opposition to his viewpoints. From columnists to commentators, entertainers, lawyers, airline workers and copy center employees, employers have acted quickly to discipline workers whose posts were deemed inappropriate in various ways.
Here in Utah, employers weighing discipline for a personal social media post should consider a provision in the Utah Antidiscrimination Act. Utah Code § 34A-5-112(3) provides: “An employer may not discharge, demote, terminate, or refuse to hire any person, or retaliate against, harass or discriminate . . . for lawful expression or expressive activity outside of the workplace regarding the person’s religious, political, or personal convictions . . . unless the expression or expressive activity is in direct conflict with the essential business-related interests of the employer.” While employers in other states may have more latitude in responding to employees’ personal political posts, Utah businesses must evaluate whether the content at issue directly conflicts with essential business interests—a high standard. Similarly, several states have laws protecting employees from discipline based on lawful off-duty conduct. Understanding the law that applies in a particular situation is therefore critical in any disciplinary decision-making.
A related issue arises under the federal National Labor Relations Act (NLRA), which applies in both union and non-union workplaces. The NLRA gives non-supervisory employees the right to talk with each other about workplace issues and act together to improve their terms and conditions of employment. One forum where this sometimes occurs is social media. An employee’s post about a political issue may evolve into commentary or discussion about perceived workplace problems like discrimination or wage and hour issues. The NLRA protects such discussions when they are part of, or are an attempt to initiate, “concerted activity” (group action) regarding terms and conditions of employment. Discipline based on protected concerted activity can land an employer in hot water at the National Labor Relations Board, defending against an unfair labor practice charge.
In short, that inflammatory social media post your worker fired off may well have some legal protection under state or federal law. Before taking disciplinary action, a wise employer will carefully consider what the law allows. These issues are legally complex and can be difficult to navigate; experienced employment counsel can help your organization avoid costly missteps. Parsons Behle’s Employment team regularly assists employers with crafting compliant social media policies and responding to situations involving employee social media content.
FTC Seeks Public Input on Non-Compete Agreements
On Sept. 5, 2025, the Federal Trade Commission (FTC) formally abandoned appeals filed under the Biden administration in litigation challenging a Biden-era FTC rule on non-compete clauses (the Biden rule). The Biden rule was issued on April 23, 2024, and banned most non-competes, with limited exceptions for some agreements with senior executives and non-competes related to the sale of a business. The rule was almost immediately challenged in court and never took effect.
Unsurprisingly, the Trump FTC does not view the Biden rule favorably and determined not to continue efforts to defend it. FTC Chair Andrew Ferguson and Commissioner Melissa Holyoak issued a lengthy statement explaining the decision, arguing that the Biden rule’s “illegality was patently obvious,” and that “plaudits from the liberal media and other Democrat partisans are all this Rule generated.” On the other hand, Ferguson and Holyoak observe that “noncompete agreements can be pernicious. They can be, and sometimes are, abused to the effect of severely inhibiting workers’ ability to make a living.” However, they contend that states have addressed these issues, and that the FTC’s focus should be on enforcement when non-competes “are onerous enough to become unlawful.”
Separately, on Sept. 4, 2025, the FTC launched a public inquiry “to better understand the scope, prevalence, and effects of employer non-compete agreements, as well as to gather information to inform possible future enforcement actions.” The agency seeks input from current and former employees affected by non-competes as well as employers “facing hiring difficulties due to a rival’s non-compete agreements.” Comments can be submitted through Nov. 3, 2025, at www.Regulations.gov.
While the FTC is no longer pressing a rule to ban non-competes, employers should remember that these types of agreements are limited under the laws of most states. States that allow non-compete clauses generally require that they be narrowly tailored to protect an employer’s proprietary information or goodwill; limits on their geographic reach, time period and activity restrictions are common. Employers wishing to implement non-compete agreements must carefully analyze applicable law and ensure their agreements do not overreach.
