Earlier this month a survey of 400 worldwide C-suite executives was conducted by Herbert Smith Freehills, LLP that found those executives foresee an unprecedented rise in workplace activism. The survey report found executives today are confronting employees articulating their views about not only workplace concerns and issues but on wider social issues. This worker activism is enabled and is consequentially amplified by social media.
With last week’s SCOTUS ruling announcing the overturning of Roe v. Wade, this week some employers will be confronted with employees voicing their opinion about it one way or the other. It could involve the use of company social media or in may be through the employee’s own social media. Is your company’s social media and other employee conduct policies ready for it this?
Aaron Holt an attorney with Cozen O’Connor last week wrote about five tips for regulating employee online speech. Citing the number of cases being brought against employers today, Holt cites five questions employers should ask when confronted with employee speech on social media:
Was the post made by a public or private employee?
If the social post was made by an employee working at a private employer, this does not involve First Amendment protections. Generally, a private employee is not protected from adverse employment action by their employer if disciplined or discharged for making a controversial statement on social media that impacts their employer. This will be particularly true if the employee uses the employer’s email or other communications media to do so.
On the other hand, if the employer is a federal, state, or municipal entity constitutional First Amendment free speech protections may apply.
Would the social media post be considered harassment if said face to face?
If the online speech relates to protections afforded by Title VII of the Civil Rights Act or State civil rights law, an employer is compelled to take action or risk an employment discrimination charge. If investigating a policy breach, it is recommended the employer evaluate the content and context of the speech to judge whether the conduct is offensive to the level of discrimination and take action to correct it. Holt recommends this “irrespective of the venue the conduct occurred.”
Does the employer possess a copy of the post or tweet?
So, somebody allegedly posted something offensive, now what? Ensure that a copy of the post or tweet as evidence is acquired. Employers should have their investigation process to follow. Who will be spoken to during the investigative process? Sometimes the post may not come from the employee. It may come from other people the worker may have allowed to use their personal computer. What if the worker shared their passwords with someone else or shared their social media accounts with family members that in turn posted the offensive statement? Preserve the evidence of the post, regardless.
Does state law protect the post or tweet?
Many States have laws protecting political speech to various degrees. California, Colorado, Minnesota, Missouri, Nebraska, Nevada, South Carolina, and West Virginia all have laws that prohibits interference with employee political activities. Michigan does not have a specific law on protection of political activity or speech in the workplace, but it does have two other laws that could come into play. One law prohibits employers requiring employees or applicants give access to the employee’s personal internet account so the employer might monitor what is on that account. This law does not apply to any device or account paid for by the employer. MCL Sec. 37.275 & .276.
Michigan’s Bullard Plawecki Sunshine in the File Act also prohibits employers from gathering information or keeping records on employee political activity. This is unless the information is submitted or authorized to be kept (in writing) by the employee. Keeping such information is also permitted if it is discovered during the course of an employer investigation or is being applied in response to activities occurring on the employer’s premises. MCL Sec 423.509.
Employers that have operations in other states or even allow remote work by employees in other places around the country will need to know where their employees are working and subsequently what local state law may be applicable.
Does the post or tweet relate to working conditions or wages/benefits?
Communications in whatever form intended between employees on these subjects are protected by Section 7 of the National Labor Relations Act (NLRA). For example, in 2015 (Obama Board) the National Labor Relations Board (NLRB) found an employee’s Facebook post verbally attacking a supervisor and his family in an expletive-laden rant was protected simply because the employee closed their rant with “Vote YES for the UNION!!!!!!” Pier Sixty LLC.
Employers should regularly review their social media policy/rules to see make sure they are clear and keeping up with various federal and state laws as well as federal agency (NLRB) rulings. Employers have to be ready to act on social media posts or tweets that cross the line in areas of discrimination/harassment and communications that adversely impact the employer.
But watch out on speech that workers have the right to engage in because it is covered under the NLRA’s protected concerted activity rule (Section 7). Protected concerted activity is any activity (speech) that has the purpose of providing mutual aid or protection to workers pertaining to terms and conditions of employment – a pretty broad standard. Discerning legal from illegal gets pretty complex.
Be ready to legally confront or address inappropriate worker behavior in the workplace that may arise out of today’s environment of social or political activism.
ASE’s CCH HR Answers Now online library has extensive policy and compliance information in the areas of social media policy development, discipline, and discharge; discrimination and harassment policy; and procedures for member education and general compliance knowledge. CCH is accessible to ASE members via the ASE Member Dashboard.
Sources: CCH HR Answers Now Access to Personnel Files Law Summaries, Michigan MCL Title 17 Chapter 149; Law360 Employment Authority - 5 Tips For Employers Regulating Employee Speech Online (6/24/2022)