Over the past year, employers have had to grapple with seismic social, cultural, and political developments impacting profoundly how they do business. From a worldwide pandemic severely affecting global communities, markets and workplaces, to the murder of George Floyd catapulting racial and social justice issues to international prominence, to a tumultuous presidential election and its resulting fallout, to the brutal attacks on the Asian American and Pacific Islander (AAPI) community, there has been a fundamental shift in how employers interact with the world around them and manage their ever-changing workforces.
How a company responds – or fails to respond – to social justice and political issues can impact employee morale, consumer satisfaction, community perception, a company's relationships with its investors and its financial health. And while employees have always brought their experiences and influences to work, increased polarization and a lightning-fast news cycle have seen businesses not only scrambling to adapt their policies and practices to respond to new realities, but also proactively making commitments to issues and causes important to their leadership, their employees, and the communities they serve.
In addition to concerns surrounding corporate responsibility and satisfying employees, consumers, and the public at large, employers find themselves having to respond to a wide range of on- and off-duty employee conduct, including:
- Social media activity;
- Attendance at protests and rallies;
- Messaging on clothing and masks;
- Workplace civility and safety; and
- Leaves and time off
While traversing these issues, employers need to navigate a patchwork of federal, state, and local employment laws, including but not limited to:
- Laws governing political activity and privacy;
- National Labor Relations Act (NLRA) obligations;
- State free speech protections;
- Americans with Disabilities Act (ADA) and Family Medical Leave Act (FMLA) requirements; and
- Federal and state occupational safety and health obligations.
Amid this backdrop, there are a number of steps employers can take to prepare their workplaces for the effect of social and political issues and respond to developments as they occur, including:
- Implicit bias and other diversity training;
- Employee Resource Groups/Business Resource Groups/affinity groups; and
- Developing internal and external company messaging and other responses.
This paper reviews the relevant legal backdrop and aims to offer practical guidance for employers as they navigate these sensitive and pressing issues.
I. Employee Off-Duty Conduct
A. What Types of Off-Duty Conduct May Have Workplace Implications?
Numerous types of off-duty conduct could have workplace implications, including posting on social media or participating in demonstrations and counter demonstrations. Other forms of protests also could be relevant, such as taking a knee during the national anthem. Due to the mutual accessibility of social media accounts and that many co-workers are linked on the platforms, employees often may know the political and social views and activities of their co-workers, supervisors and subordinates, and this knowledge can create friction that seeps into the workplace. Employees may lodge complaints with their employers about posts or other conduct they find particularly upsetting, including (subjectively or objectively) politically, racially, or sexually offensive statements or images. If the employer takes no action, employees may conclude the employer condones the off-duty conduct – and vice versa. Further, social media posts that can be offensive based on race, gender, LGBTQA+ status or other protected categories may demonstrate discriminatory animus if the employee is ever accused of discrimination or harassment in a lawsuit. An employer should know its obligations, limitations, and options in responding to such complaints.
B. What Laws Govern?
1. First Amendment
For many people, the first thing that pops to mind when considering employee social media posts or public protests is the First Amendment of the U.S. Constitution. The First Amendment provides that "Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble." While the First Amendment secures many essential rights for Americans, it does not apply to private employers. Rather, the Bill of Rights, which includes the First through the Tenth Amendments, restricts a government's ability to interfere with individual liberties, such as freedom of speech, privacy, and religious exercise. It does not restrain private citizens or organizations. Thus, while private employees have a First Amendment right to free speech and to engage in peaceful public protest without government infringement, the Constitution does not protect them from discipline by their private employer.1
In contrast, public employers risk running afoul of the First Amendment if they discipline employees for exercising their rights to free speech or peaceful public protest.
Footnote
1 See Carter v. Transport Workers Union of Am. Local 556, 353 F. Supp. 3d 556, 576 (N.D. Tex. 2019) (granting motion to dismiss First Amendment-based retaliation claim against airline company). Notably, the state of Connecticut extends the First Amendment protection of free speech to the employees of private employers.
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