Employers should understand the risks when political banter oversteps the line.
As we enter the home stretch of the 2020 election cycle, employers likely need to review the ways political discourse and behavior can bleed into the workplace and create liability and challenges concerning labor and employment law. The COVID-19 pandemic, the accompanying increase of remote work environments, and the resurgence of racial-justice protests and awareness are new elements to managing this issue in 2020 and beyond.
The constitutional protections of the First Amendment do not apply to actions taken by non-governmental entities, including private employers, although this is often an issue that people confuse because the abstract concept of “free speech” is so ingrained in our popular culture. There are related or similar concepts, however, that often impact the workplace. For example, federal labor law gives all employees (even non-union employees and those who cannot legally unionize) a right to engage in “concerted activities” related to terms and conditions of employment. While a July 2020 National Labor Relations Board (NLRB) ruling clarified that “abusive conduct” is not protected unless specifically motivated by the employee’s protected or union activity, employers should still tread lightly when dealing with employee speech complaining about employment-related issues, especially if the speech does not otherwise violate other workplace rules.
This is equally true outside the physical or virtual workplace. Even a Facebook “like” of a protected social media post might be itself protected activity. The NLRB’s rulings on social-media policies have swung wildly over the past eight years and will continue to do so in the future, depending on the political leanings of the president appointing its members and general counsel. With that in mind, employers should regularly review their social-media rules to be aware of current or potential risks arising from them.
As a general rule, however, employees do not have a “right of free speech” in private employment. Even states that outlaw employment decisions based on off-duty conduct usually have exceptions for speech that is threatening or harassing on the basis of a protected characteristic (such as offensive racial comments).
In recent months, employers have seen a surge in complaints from third parties regarding their employees’ social-media activity. There are many of these groups and message boards, but (as an example) the Facebook group “Let’s get a racist fired today” has more than 6,000 members and approximately 45 posts per day. If your human-resources department receives calls and emails about such postings, the public-relations impact could be significant.
And, while employers are only required to take action to regulate things that impact the workplace (and a personal social-media post might not), consider what the EEOC will think when it gets a workplace harassment complaint about the same individual—and discovers HR was on notice that he was accused of being a racist and took no action. This does not mean termination is necessary simply if someone complains—employers should assess the post as it would any other complaint and take appropriate action.
In addition to the typical wrongful termination (or other adverse action) claim, an employer will be liable for discrimination if the employee proves they were subjected to a “hostile work environment.”
That’s defined as a case where an employee experiences unwelcome, intentional, “severe or pervasive” harassment on the basis of a protected characteristic (race, gender, religion, etc.). If such harassment comes from a member of management, the employer is likely directly liable. If it comes from a rank-and-file employee, the employee must show that the employer (through management) was aware of the harassment and failed to remedy it promptly.
Such harassment sounds easy to recognize and punish, but the practical implications of doing so are nuanced. The obvious cases—a racial slur or unwanted sexual touching—are easy to recognize and a judge and jury will be unforgiving if an employer fails to do so. But in 2020’s politically charged environment, employers should be on the lookout for subtle things that might lead to a claim of hostile work environment, including political discussions.
One person’s opinion about an issue, such as immigration or police brutality, might be seen by another person as a veiled judgment of another race or national origin. Employers would be wise to counsel their managers to keep workplace conversations away from the political realm whenever possible, especially when they veer into any marginally controversial subject.
Additionally, and more importantly given the link to the employer’s knowledge of the alleged harassment, managers should never discount a complaint about such dis-cussions as “just politics.” What may seem like “just politics” to one person may be seen as something that impacts the entire life of another—their health, their safety, and their full participation in our democracy.
Common sense about what should be discussed at work may be in short supply and a target. It can seem a strange new world to some, but employers must analyze to obligations to protect employees from harassment and discrimination through the lens of social and technological developments and realities.