You don’t need a legal blog to tell you that the country is in a state of extreme unrest regarding the killings of George Floyd, Ahmaud Arbery, Breonna Taylor and so many other Black people, at the hands of police and in other racially charged incidents. People in the United States and abroad have engaged in protests about issues related to race in America, including police brutality and institutional racism. In addition to people protesting in the streets, millions more have taken to social media to voice their opinions and pain.
On top of being concerned about these issues and the well-being of your employees, many employers may also be wondering what to do when and if your employees make offensive statements about these and other topics in their off-duty conduct, like on social media, both to other employees and to the general public. To find examples of recent employment consequences from high-profile off-duty conduct, one need only look to recent headlines, like the recent resignation of CrossFit’s CEO after controversial statements about George Floyd and Amy Cooper’s termination after her threats to call 911 on a Black man in Central Park.
Picture this. Your public relations team calls you in a panic because one of your employees has gone on a Twitter rant making racially offensive comments about the protests and the causes they are championing. Numerous people, both employees from within the company and your customers, are calling and tweeting to inquire, “Are these the sort of opinions your company condones?” As your company borders on going viral, you might wonder how they even found you as his employer. Well, this person notes in their profile page that they are indeed your employee.
As a first step, it is important to engage in a prompt, through and accurate investigation of these types of issues to verify the identity of the speaker and what statements were actually made. Also, is there even a clear nexus to connect their statements to you as their employer? If and when these facts are verified, what policies have been violated? Hopefully you have a social media policy that makes clear that employee statements made online can have a disciplinary consequence, especially if they violate the company’s anti-harassment/anti-discrimination policy or when they otherwise violate an employer policies, including those related to confidentiality or codes of conduct. Employees often forget that they remain subject to the company’s anti-harassment or discrimination policy when they are off-duty. They are not free to write harassing statements to colleagues simply because they are doing it on their free time. This scenario would be especially problematic if the tweets were coming from a manager who is then expected to carry out employment decisions without discrimination. While one such statement would not likely be legally actionable, it could nonetheless violate a company’s zero tolerance on such matters and still subject the employee to termination or other discipline.
Let’s also be sure to discuss the First Amendment, because it is likely this employee will assert his free speech rights when defending his tweets. To be clear, an employee’s First Amendment rights have nothing to do with a private employer’s ability to discipline its employee for statements found to be in violation of company policies or to be out of sync with the company’s ethos. The First Amendment bars the government, not private actors, from restricting freedom of speech.
One caveat to consider though is whether your state or locality has additional laws that protect employees from being retaliated against for lawful off-duty conduct. Such laws may protect such an employee making highly offensive, but still legal statements. Such laws, in states like California, Colorado, and North Dakota, may factor into whether an employee is protected from employment consequences for making highly offensive, but legal statements. As such, an offensive statement might be protected if it is also an expression of one’s political views or affiliations.
Although not applicable in this example, it is important to also know that there are some instances when such comments, even if offensive, might also be seen as engaging in protected concerted activity under the National Labor Relations Act. The NLRB has extended some protection to employees from discipline for using offensive language to describe management on social media so long as they were addressing work-related issues with one or more colleagues, and were not saying something egregiously offensive, or knowingly false, or publicly disparaging their employer’s products or services without relating the complaints to any labor controversy.
Admittedly, this hypothetical might cheat a bit by posing the question based on a clearly offensive statement because there is often much gray area between whether a statement is offensive versus just unpopular—a gray area that often shifts with people’s varying experiences and beliefs. When applying these balancing tests for less clear examples, employers should consider the source of the complaints and whether the statements create a business case for (or against) taking some action against the employee. Are employees complaining of harassment as a result of the statements? Are the statements creating a distraction within the company? Have clients withdrawn their business (or threatened to do so) as a result of the statements? Employers may have an easier path to defend their actions against an employee when the off-duty conduct has resulted in identifiable harm to the company’s reputation, internal productivity or morale, or its bottom line. Employers may have an even stronger basis to take action when an employee serves in a position of trust, power or even high visibility with the public, such as entertainment or media, education, law enforcement, or consumer financial services.
Employers should take care to weigh all relevant concerns when addressing off-duty conduct and statements. In most instances, employees’ normal off-duty conduct has little to no bearing on their employment and as such, employers are unlikely to find any good cause to address it. But, when it crosses a line to either violate company policies or cause harm to the company, employers do have options for disciplining and even terminating an employee. Employers should approach such decision-making with caution and seek legal counsel to ensure that any action taken is well-reasoned and defensible.
Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.
