Social And Political Issues And The Workplace Implications For Employers – Employment and HR – United States – Mondaq News Alerts

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Over the past year, employers have had to grapple with seismicsocial, cultural, and political developments impacting profoundlyhow they do business. From a worldwide pandemic severely affectingglobal communities, markets and workplaces, to the murder of GeorgeFloyd catapulting racial and social justice issues to internationalprominence, to a tumultuous presidential election and its resultingfallout, to the brutal attacks on the Asian American and PacificIslander (AAPI) community, there has been a fundamental shift inhow employers interact with the world around them and manage theirever-changing workforces.

How a company responds or fails to respond tosocial justice and political issues can impact employee morale,consumer satisfaction, community perception, a company'srelationships with its investors and its financial health. Andwhile employees have always brought their experiences andinfluences to work, increased polarization and a lightning-fastnews cycle have seen businesses not only scrambling to adapt theirpolicies and practices to respond to new realities, but alsoproactively making commitments to issues and causes important totheir leadership, their employees, and the communities theyserve.

In addition to concerns surrounding corporate responsibility andsatisfying employees, consumers, and the public at large, employersfind themselves having to respond to a wide range of on- andoff-duty employee conduct, including:

While traversing these issues, employers need to navigate apatchwork of federal, state, and local employment laws, includingbut not limited to:

Amid this backdrop, there are a number of steps employers cantake to prepare their workplaces for the effect of social andpolitical issues and respond to developments as they occur,including:

This paper reviews the relevant legal backdrop and aims to offerpractical guidance for employers as they navigate these sensitiveand pressing issues.

Numerous types of off-duty conduct could have workplaceimplications, including posting on social media or participating indemonstrations and counter demonstrations. Other forms of protestsalso could be relevant, such as taking a knee during the nationalanthem. Due to the mutual accessibility of social media accountsand that many co-workers are linked on the platforms, employeesoften may know the political and social views and activities oftheir co-workers, supervisors and subordinates, and this knowledgecan create friction that seeps into the workplace. Employees maylodge complaints with their employers about posts or other conductthey find particularly upsetting, including (subjectively orobjectively) politically, racially, or sexually offensivestatements or images. If the employer takes no action, employeesmay conclude the employer condones the off-duty conduct andvice versa. Further, social media posts that can be offensive basedon race, gender, LGBTQA+ status or other protected categories maydemonstrate discriminatory animus if the employee is ever accusedof discrimination or harassment in a lawsuit. An employer shouldknow its obligations, limitations, and options in responding tosuch complaints.

1. First Amendment

For many people, the first thing that pops to mind whenconsidering employee social media posts or public protests is theFirst Amendment of the U.S. Constitution. The First Amendmentprovides that "Congress shall make no law . . . abridging thefreedom of speech, or of the press; or the right of the peoplepeaceably to assemble." While the First Amendment secures manyessential rights for Americans, it does not apply to privateemployers. Rather, the Bill of Rights, which includes the Firstthrough the Tenth Amendments, restricts a government's abilityto interfere with individual liberties, such as freedom of speech,privacy, and religious exercise. It does not restrain privatecitizens or organizations. Thus, while private employees have aFirst Amendment right to free speech and to engage in peacefulpublic protest without government infringement, the Constitutiondoes not protect them from discipline by their privateemployer.1

In contrast, public employers risk running afoul of the FirstAmendment if they discipline employees for exercising their rightsto free speech or peaceful public protest.

1 See Carter v. Transport Workers Union of Am. Local556, 353 F. Supp. 3d 556, 576 (N.D. Tex. 2019) (grantingmotion to dismiss First Amendment-based retaliation claim againstairline company). Notably, the state of Connecticut extends theFirst Amendment protection of free speech to the employees ofprivate employers.

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The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circumstances.

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Social And Political Issues And The Workplace Implications For Employers - Employment and HR - United States - Mondaq News Alerts