It’s Monday morning and you just logged in. You are greeted by emails from managers concerned about three employees’ behavior over the weekend. Employee Jane was reported by a customer for harshly criticizing Black Lives Matter on her Facebook page. Employee Fred was seen by coworkers picketing the local grocery store for requiring masks. And Employee James was on the local news chanting “Abolish the Police” at a local protest.
In a time of civil discord and stark political and social disagreements, you as a Legal or Human Resources professional are going to be faced with this kind of situation. And it’s not easy: these matters raise concerns about public relations, free speech, workplace culture, concerted activity, and discrimination that can’t always be reconciled.
Historically, most companies took the position that they would not get involved in employees’ behavior outside of work unless it directly impacted work or was illegal. While this is often a good approach, it at times will not be enough in an age of viral videos and intense pressure on companies to respond to their employees’ out-of-office actions. Here’s how to prepare for these inevitable situations:
1. Proactively discuss what kinds of out-of-office speech and activity are out of bounds for your organization
Organizations will have different tolerances for employees’ public points of view on current events. For instance, a non-profit focused immigration advocacy may find an employee’s public support of President Trump’s border wall unacceptable. Likewise, an organization that regularly serves police officers may not tolerate calls to abolish or defund the police. It is important to proactively brainstorm about what kinds of speech and activity your organization finds problematic, and develop guiding principles. It will be crucial that your organization be consistent and speak with one voice when these situations arise.
2. Address out-of-office speech and activity in your Code of Conduct and/or Social Media and HR policies
Once you have your guiding principles, it is important to put employees on notice that their out-of-office conduct – including social media posting – could impact their employment. In drafting a policy, specific examples of problematic conduct should be listed. It is also important to educate employees on the fact that they may have limited First Amendment Rights in relation to a non-governmental employer. Many employees may – wrongly – assume that because they are engaged in speech or activity about current events, their speech is protected and they cannot be held accountable at work. You will do your organization and your employees a service by making expectations for out-of-work behavior as clear as possible.
3. Train Employees on your Code of Conduct and Policies
Although formal training is not required, it is important to put employees on notice of your policy and expectations on out-of-office conduct. Along with an email blast or internal memo, an effective way to do this is to create a short manager “huddle,” where managers spend a few minutes informing employees of the policy and fielding questions. Questions can then be passed onto HR or Legal as needed.
4. Consistently Apply your Policies
Once you have considered what kinds of out-of-office speech and activity you find problematic, you have drafted a clear policy or guidelines with examples for your employees, and you have educated them on your company’s expectations, you should now consistently enforce your policy. Failure to be consistent will greatly increase the risk of discrimination and defamation claims, and could increase negative media attention that comes with these issues. Because these cases are unique, consider having one internal point of contact for evaluating all issues of out-of-work conduct.
5. Consult with an Attorney Along the Way
It is important to consult with a legal expert on each step due to the implications on free speech, discrimination, defamation, and other legal issues. For instance, employers must consider the issue of concerted activity under the National Labor Relations Act, which broadly protects certain workplace and out-of-office speech and conduct of employees (even in non-unionized workplaces), and whether any state or local laws protect the actions in question. An attorney should review your guiding principles, policies, and any adverse employment actions you plan to take in regard to out-of-office conduct to ensure compliance with law.