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Employers Must ‘Tread Lightly’ With Social Media Protest Posts

June 17, 2020, 9:30 AM

The #BlackLivesMatter protests fighting racial injustice and police brutality erupting on the streets, as well as on social media, have legal implications about what workers can say or do in or out of the workplace.

The death of George Floyd inspired protests in towns and cities around the world and conversations on social media such as Facebook and Twitter exploded. Journalists have criticized their newspapers’ editorial decisions they say were harmful; academics of color detailed power imbalances with a Twitter hashtag #BlackintheIvoryTower; and researchers and scientists organized a mass sick day to protest unfair treatment.

The messages of these protests could overlap with a fight against racial discrimination in the workplace, but fall into a gray area of labor law, raising questions about what speech is protected and what power workers have to speak out and not face repercussions. The answer won’t necessarily be clear-cut, academics and employment attorneys say, but workers could have broad rights to protest racial injustice as a workplace condition.

Employees who work for private employers generally can be fired for any reason, except for discrimination against protected groups, including sex, race and religion, or for speaking together about workplace conditions.

“There are a tangle of protections and employees’ rights that butt up against each other,” said Laura Jacobsen, co-chair of the employment and labor law group with McDonald Carano. “The employer needs to tread lightly.”

Whether advocacy is protected revolves around how the protest or speech is framed, said Tamara Lee, assistant professor of labor studies and employment relations at Rutgers University. For example, anti-immigrant rallies were framed as a call for “job security” against undocumented workers, and organizers said the issues are inherently linked. She said similar arguments can be made about the #BlackLivesMatter protests.

Fighting “racial injustice is in employees’ interest. There are so many ways you can frame it as an employee issue,” Lee said. “The Supreme Court says it can be broad, the only requirement is that it sufficiently relates to people as employees. There are dozens of frames that obviously apply to workers. The systemic racism that underlies police brutality is also present in workplaces.”

Concerted Advocacy

Some employers are responding to such advocacy efforts with messages of support, while disciplining or firing workers for offensive or racist comments in opposition. Employers also are addressing complaints of unconscious bias throughout their workplaces.

The National Labor Relations Act generally protects workers when two or more speak out about workplace conditions, and this theory has been tested recently through social media and off-duty conduct. Questions have arisen around other protests, including those for and against immigration reform and rallies held by white supremacists. In 2017, an employer terminated a protester who attended a protest in Charlottesville, Va.

The Supreme Court in 1978 ruled that the National Labor Relations Board has discretion to decide what type of speech should be protected in refereeing disputes between businesses and unions. The Republican-led board hasn’t taken a formal position on social media policies but has outlined a framework for workplace rules.

Employers with union and nonunion workforces use social media policies to tamp down online conflicts between co-workers, prevent damage to their reputations, stop publication of proprietary information, and avoid individual workers’ comments from being misattributed to the company. But such policies can come into conflict with workers’ rights to criticize their employer and communicate with one another about the terms and conditions of employment.

Lee of Rutgers said the broad Supreme Court ruling that gives this wide discretion is underused by unions and workers groups to argue for such protections. This doesn’t give a worker an individual right, however, to engage in offensive activity and a private employer typically can fire someone in an at-will employment relationship.

Activism also can collide with workplace rules when a worker goes to a protest, organizes fellow workers, or appears online supporting a cause. Workers still must do the job they’re hired to do, and won’t be protected under the law for skipping work to attend a rally, said Aaron Holt, labor and employment attorney with Cozen O’Connor.

Holt said employers could discipline a worker for illegal activity outside of work, or even activity, such as offensive comments online, that they don’t approve of. But organizing while at work, or falsely calling in sick shouldn’t be considered protected activity, he said.

“When you regulate off-duty conduct, the content matters and the content of the speech matters,” Holt said. “If they are protesting in a way that is a illegal, then it’s within the rights to terminate. If they are peacefully protesting, those are tougher circumstances.”

Harassment-Free Workplace

Companies also have the duty to ensure a respectful and harassment-free workplace. Statements on Facebook or Twitter that are offensive or racist in response to the protests could reflect poorly on a company’s reputation, attorneys say.

Most employers are looking toward diversity and inclusion efforts, said Jacobsen of McDonald Carano, and she doesn’t recommend her clients go out of their way to track what their workers are saying online. Most aren’t so concerned with worker activism as they are about how to educate their workforce about harassment and equity.

Employers are asking what to do about workers who have posted racist rants in response to the protests, said Kate Bischoff, an employment attorney with consulting firm tHRive Law & Consulting in Minneapolis. They want to terminate the worker but don’t want to open themselves up to liability, she said.

Here’s her advice in this situation: Explain that the company doesn’t stand for that type of language and terminate the worker, while making sure there aren’t violations of the National Labor Relations Act or Title VII of the 1964 Civil Rights Act.

“They are cognizant of the legal risk they take if they don’t take immediate action. They don’t want these workers to be a reflection of the company,” Bischoff said. “What we are seeing is some of the #MeToo tactics being pplied to this situation. I’m encouraging employers to be supportive of people telling their truth.”

If an employer would discipline a worker for saying something in person, that should apply to online conduct as well, based on the company’s harassment and retaliation work rules, said Sara Kalis, an attorney with Paul Hastings, who represents employers. She said requiring respectful conduct is important and discipline must be consistent with company policies and applied equally.

Stifling support for #BlackLivesMatter also could create a hostile work environment, she said.

“Because companies want to give employees latitude to express themselves, there are a lot of posts and commentary going around, a lot of employers are respectful of that desire to comment,” Kalis said. “I don’t think that it changes the ultimate goal of an employer is to create a respectful and inclusive workplace. To stifle comments about that would not create that environment and could work to the detriment of the company.”

To contact the reporter on this story: Erin Mulvaney in Washington at emulvaney@bloomberglaw.com

To contact the editors responsible for this story: Karl Hardy at khardy@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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