November 9, 2020, by Sahar Shiralian
In a year defined by a historic, unprecedented pandemic that has become politicized and racial tensions galvanized by the Black Lives Matter protests in the wake of George Floyd, it is no surprise that election week is one of the most divisive in our nation’s history. Naturally, employees are likely no longer making small talk and discussing the weather at the water cooler, but rather divisive topics that may affect company morale and productivity and in the worst-case scenario, create a toxic work environment.
Employers are rightfully concerned about the social media activity of their employees. Are employees engaging in hate speech when commenting on social justice issues? Is an employee’s public endorsement of a particular candidate harmful to a company’s brand or reputation and can it be controlled? Below are some tips for employers in surviving the weeks following this year’s elections and preventing and bubbling political tensions between employees in the workplace:
Talking Politics at Work
Contrary to popular belief, the right to free speech is not unfettered and does not apply in most workplaces. The First Amendment applies only to government action and does not limit the rights of private employers to regulate employees’ communications nor provide any constitutional right for employees’ to express thoughts or opinions at work. Private employers are free to establish rules concerning political talk in the workplace.
Employers should establish neutral policies in the workplace, without banning all political discussion. Specifically, employers should establish policies that discourage politically charged discussions and prohibit the display or distribution of political materials. These policies should be distributed by employers immediately or as soon as possible. It is important, however, that employers not favor certain political beliefs over others in distributing such policies. In addition, it is important to reiterate policies against unlawful harassment and discrimination, which can be violated during a divisive election year. If employers do not have formal policies regarding discrimination and harassment in place, it is time to start drafting and distributing them. Lastly, employers should periodically remind employees of these rules.
Further, employers should be vigilant about and monitor workplace discussions and activity. If a disruption regarding politics between colleagues occur, employers (or Human Resources) should step in and deescalate the situation. Employers should pay special attention to political discussions that implicate race, religion, national origin or gender, which can trigger discrimination complaints from employees. If such complaints occur, it is important to take them seriously and ensure that employees feel that their voices are being heard. Employers should never tolerate derogatory or disrespectful comments.
Controlling Off-Duty Conduct of Employees and Social Media Policies
The extent to which an employer can control an employee’s social media presence and off-duty conduct depends on the circumstances. Currently, California bans employers from firing or retaliating against employees for any off-duty lawful activity, including speech. Specifically, California Labor Code Sections 1101 and 1102 prohibit employers from attempting to control or direct the political activities or affiliations of their employees and prohibit employers from discharging or taking other adverse action against employees for their political activities. These actions extend to social media posts, comments, etc. Arguably, such activity could include conduct that their employers and co-workers may find offensive. However, online speech that attacks immutable characteristics protected by law (age, race, sex, religion, etc.) or constitutes workplace harassment would not be protected under these statutes.
Thus, California employers have limited tools in policing the off-duty conduct of their employees. Accordingly, California employers cannot do much regarding an employee’s social media conduct (even if it is outrageous) unless the employee’s conduct is directly violating one of the employer’s policies. For example, if an employer’s policies prohibit harassment, an employee’s post or comments taunting a coworker because of their sexual orientation, gender, or race, could be considered a violation of such employer’s anti-harassment policies. Additionally, if employees are discovered to be bullying strangers online about any of the above characteristics, such conduct could also be considered a violation of an employer’s policies and subject to discipline.
In other words, if an employee is engaging in hate speech that targets protected characteristics under Title VII, an employer is well within its rights to discipline or even terminate the employee. Expressions of racism or other harassment are not political speech. Further, many employers have specific policies regarding social media that prohibit the type of information that can be shared, such as confidential client matters, internal communications, or proprietary information.
In sum, employees may be subject to disciplinary action up to and including termination for social media posts that include:
- Hate speech of any kind (regarding any protected classes);
- Speech that is severe enough to constitute a hostile work environment (regarding any protected classes); or
- Threats to employee safety or of workplace violence.
During the weeks to come, it is therefore imperative for employers to spend time updating or preparing anti-harassment and anti-discrimination policies and reminding their employees of these rules. Second, it may be wise to create and distribute political speech and social media policies. One thing is certain during this time of uncertainty: employers must strive to ensure their employees feel comfortable in the workplace and are not subject to discrimination or harassment as a result of divisive political discussions that are triggered by opinions about the pandemic, racial tensions, and the election.