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Sunday, December 27, 2020

Do Employees Who Become Activists Have Job Protection?

In New York City, teachers, educators at all levels, and school staff members are angry, confused, demoralized, and unhappy with the policies currently put into place by the Mayor and the schools' Chancellor. All sides are grumbling.

I'm not referring to the COVID-19 pandemic 2020. This anger, frustration, and yes, despair, started about 16 years ago when the online rumor mill and mobbing became weaponized.  The internet allowed a single person the ability to alter and/or destroy another person's life and ability to get employment after a false report of misconduct was cited. Truth does not matter, computer skills and social media connections, do. I work in this area and have been documenting how this works with NYC teachers, school administrators, and Courts, both State and Federal.

The Society for Human Resource Management (SHRM) addresses this problem and also the question of what speech is actually protected in the workplace. See the post below.

Betsy Combier,
Editor, ADVOCATZ Blog
Editor, NYC Rubber Room Reporter
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

When Employees Become Activists

By Cristina Rouvalis, SHRM, June 29, 2020

In recent months, a surge in activism has seen thousands standing up for causes such as Black Lives Matter or protesting COVID-19 government shutdowns. Are employees who participate risking their jobs each time they take to the streets or post politically charged comments on social media?

The answer varies depending on what they do and where they work. For example, it may not pose a problem for employees to protest off-hours. But employees who skip work to protest do risk termination. Many private employers have the right to fire employees "at will," but employment lawyers caution companies to tread carefully when disciplining employees for political activism outside of the office.

States including California, Colorado, Louisiana, and New York protect an employee's right to engage in political activity. But most states do not have such protections.

What employees say in the workplace and at protests could be a problem, as well.  "For private companies, you do not have a First Amendment right to free speech in your place of employment," said Aaron Holt, an employment lawyer with Cozen O'Connor in Houston. "So employers have wide latitude to limit speech that might be offensive to others or affect the company's reputation or value." (See "What Employee Speech Is Protected in the Workplace?" for more information.)

In general, he said, most employers don't discipline employees for marching in peaceful protests outside of work hours. The exception is when it goes against the company's values. If someone is caught making racist remarks or otherwise violating the company's discrimination or conduct policies, the employer is within their rights to fire or discipline the employee for their off-duty conduct. Title VII of the Civil Rights Act prohibits workplace discrimination on the basis of race, color, religion, sex, or national origin. If the company has notice of discriminatory off-duty conduct of its employees and fails to address it, and another incident occurs in the future, the company could be held liable for tolerating a hostile work environment, he said. 

Betsy Carroll, an employment lawyer at Davis Wright Tremaine in Los Angeles, said in most states, employers can fire someone at will but not for an illegal reason. "Is there any way that taking action against someone for political reasons could be a proxy for something else—a protected class like race or national origin? You have to be mindful that someone is not perceiving that they are singled out," which could open the door to a discrimination suit.

The key is consistency. "If an employer doesn't have a problem with someone taking off work to go to a protest about the pandemic shutdown, but they do have a problem with someone going to a Black Lives Matter protest, that's a problem," Holt said. "Employers can't pick and choose who they want their policies to apply to."

Added Peter Shapiro, an employment lawyer at Lewis Brisbois Bisgaard & Smith in New York City, "If you only discipline the minority and you don't discipline the majority, you have a pretty good lawsuit on your hands. But it has to show adverse actions, such as being demoted, fired, or suspended." 

The more egregious the behavior, the better the case for the employer to step in, lawyers said. If an employer can prove a pattern of behavior, rather than just one offensive tweet, it will have a stronger case for taking disciplinary action.

But there are limits to how much employers can ask about political activity—especially in states with protections. "In California, employers may not ask about arrests that do not lead to a conviction, and so if someone gets arrested at a protest, most of the time, you wouldn't be able to ask about it," Carroll said. But discipline may be allowable if the individual was caught on camera being violent. (See "What to Do If an Employee Is Arrested During a Protest" for more information.)

Employees also have to make sure that their political activity doesn't interfere with job performance. If they skip work to march, they could be disciplined for absenteeism or failing to do their jobs, lawyers said. "You have to do it on your own time," Shapiro said.  

Aside from the legalities of disciplining an activist employee, companies also have to consider the public relations of shutting down an employee's political expression. Terminating an employee for his or her political position could result in an unhappy workforce and could lead to backlash in the community. 

While employees at private companies don't have many legal safeguards on free speech, those who work for public companies are protected by the First Amendment if the speech relates to a "matter of public concern." But even that right is not unfettered, Holt said. "There's a balance between the employers' right to maintain a disruption-free and productive workplace and the employees' rights to speak on matters of political, social, or other concern to the community."

Cristina Rouvalis is a freelance writer based in Pittsburgh.

What Employee Speech Is Protected in the Workplace?

Employees don't have a constitutional right to free speech at work, but employers still need to be aware of federal and state laws that do protect workers' speech in certain situations.

The First Amendment guarantees citizens the protection of free speech from intrusion by the federal government, explained Grant Alexander, an attorney with Alston & Bird in Los Angeles. "The First Amendment does not apply to private actors, and employers are private actors."

Thus, government employees do have some First Amendment protections. "Employees working in the private sector often [don't understand] that the constitutional First Amendment right to free speech applies to government employees but not employees working for businesses," said Christopher Olmsted, an attorney with Ogletree Deakins in San Diego.

But that doesn't mean that businesses can curb all employee speech. For instance, private-sector employees have the right to engage in concerted activity under the National Labor Relations Act (NLRA). This applies to workers in both union and nonunion settings.

The NLRA protects employees' right to discuss the terms and conditions of their employment, said Steve Hernández, an attorney with Barnes & Thornburg in Los Angeles. For example, workers are protected if they discuss their wages with each other, decide they're not being paid enough and seek raises from their employer.

Employees also have the right to talk about possible unlawful conduct in the workplace. Under various federal laws, employees may complain about harassment, discrimination, workplace safety violations, and other issues. "However, employees don't have the freedom or right to express racist, sexist or other discriminatory comments where such comments constitute violations of these laws," Olmsted noted.

Social Media

Employers should be mindful of how social media and policies affecting the use of social media interact with employee rights, Alexander said. In certain states, employees have the right to engage in lawful conduct when they are off the clock, and that may impact how social media policies are crafted and implemented, he added.

[SHRM members-only toolkit: Managing and Leveraging Workplace Use of Social Media]

Employers must also be careful not to run afoul of the NLRA when disciplining employees for their social media activities, Hernández noted.

An employee's posts on social media platforms might be considered protected concerted activity if the employee is discussing working conditions and other labor relations matters. In recent years, the National Labor Relations Board (NLRB) and courts have found that social media posts might be protected even if they contain profanities or sound disloyal to the business.

Thus, employers should ensure that their social media policies and practices can't be reasonably perceived as restricting such discussions.

Now that the NLRB has a Republican majority, it has shifted a bit in its stance to a more employer-friendly position, Hernández noted. But employers still can't stop workers from discussing the terms and conditions of their employment, he said.

State Laws

State laws may also enhance workers' rights to discuss certain topics. State laws protecting lawful off-duty conduct vary, so employers should check the laws in their states to see what is covered.

Although private employers may regulate political speech in the workplace without violating the Constitution, some state laws specifically protect political expression. In California, employees cannot be discriminated against based upon their political affiliation or political activity, Alexander noted. However, the protection does not necessarily give employees a right to speech in the workplace, he added.

In Oregon, the Worker Freedom Act prohibits employers from forcing workers to attend political meetings and distribute political communications.

Most states have a presumption of at-will employment, which means either the employer or the worker can terminate the employment for any lawful reason, but employers should be mindful that employees still have certain rights in the workplace that cannot be curbed, Alexander said.