December 20, 2023
Us v Them at Work
I've been fielding calls from employers who are dealing with outraged employees and clients over opinions expressed by other employees.
Religion and politics are particularly difficult territory. And we're going into an election year. It's only going to get worse.
Before you do anything else read this great piece by A. Barton Hinkle of the Richmond Times Dispatch: The Wrong Side Absolutely Must Not Win.
“(I)t’s clear that the people on the Other Side are driven by mindless anger – unlike My Side, which is filled with passionate idealism and righteous indignation. That indignation, I hasten to add, is entirely justified. I have read several articles in publications that support My Side that expose what a truly dangerous group the Other Side is, and how thoroughly committed it is to imposing its radical, failed agenda on the rest of us.”
It's from 2012, but still a perfect description.
There are always more than two sides. And smart caring people can disagree on the right thing. There may be more than one right approach or view—there usually are. Often people cannot see past their pain because of trauma including prejudice, violence, and cruelty they have experienced directly and experience daily because of who they are.
Whenever someone's reaction is bigger than the current situation seems to call for, you don't have the whole story and you may never learn it. But you should show compassion and kindness even if—especially if—you don't agree.
Employers can ask employees to focus on work at work and have rules about distracting others and creating drama. And when employees disrupt the work environment after being asked to cut it out, then discipline or termination may be the right decision.
And employers have a part in it too. As we encourage employees to bring their whole selves to work, we can't act surprised when they do.
This is great advice on how to approach controversy and employee opinions at work.
Many people feel emboldened to publicly share their views on all sorts of controversial topics these days – politics, international relations, religion, culture, or any number of other incendiary areas where there are bound to be disagreements and emotional reactions. What happens, however, when an employer learns that one of its applicants or employees has publicly expressed a controversial opinion on a difficult subject? Where can you draw the line? And should you? This Insight provides employers with the guardrails you should consider when dealing with this issue and provides some practical guidance for navigating the situation.
First Things First: Should You Look?
Quite commonly, employers are forced to decide how to react to an applicant or employee making controversial statements because some third party – another employee, a member of the public, or an anonymous source – brings it to your attention. “Did you see what one of your employees just said in that online post? I hope your company doesn’t want to continue to associate with someone who believes that!”
But other times, employers stumble upon opinions they almost wish they hadn’t seen because of online searches that capture Google results and social media profiles. Employers should go into such an exercise with their eyes wide open, almost expecting to find something controversial. A recent study conducted by the Pew Research Center found that, in the past year alone, nearly 46% of U.S. social media users have been politically active on their accounts. This activity can range from passively changing a profile picture to demonstrate support for a cause to actively encouraging others to take action regarding important issues. In other words, if you go looking, you’re probably going to find something.
Before you do anything else, work with your legal counsel to determine the extent to which you want to conduct (or have third parties conduct on your behalf) general online background searches of your applicants or employees. Even looking at LinkedIn profiles before hiring a worker could cause you to unearth unpopular or controversial stances given the increasing willingness of professionals to express their personal views in public (and seemingly professional) settings. If you do want to conduct this exercise, make sure it is done consistently and carried out by personnel trained in HR/legal matters.
What Can You Do? Legal Guardrails
So now you’re at the point where you are aware of some unpopular opinion by an applicant or employee, regardless of how you found out. What can you do?
At-Will Employment
Let’s start with the basics. In the U.S., nearly all states adhere to the at-will employment doctrine. Under this doctrine, an employer (or employee) may terminate the employment relationship at any time, for any reason, with or without cause, so long as that reason is not otherwise prohibited by law. This means a private sector employer may terminate someone’s employment or rescind a job offer for any reason, so long as that reason is not otherwise illegal or doesn’t fall into a general public policy or implied contract exception that exists in some states. This grants employers considerable discretion in most instances to rescind a job offer or terminate someone whose controversial statements they prefer not to be associated with.
First Amendment
“But I have a First Amendment right to say whatever I want!” is a common refrain you might hear from applicants or employees who face workplace repercussions for the things they say. However, the First Amendment’s “Freedom of Speech” guarantee generally does not apply to private employers disciplining its employees for engaging in prohibited conduct. The Constitutional freedoms found in the Bill of Rights and elsewhere generally restrict state action by the government and not private employers deciding how to manage their workforces.
Proxy for Discrimination
It’s common knowledge that employers can’t take adverse employment actions against an individual based upon their membership in a protected class, such as their race, ethnicity, religion, or national origin. An issue could arise, then, if an employee or applicant publicly expresses a controversial opinion that directly touches on or is related to their membership in a protected class – and an employer decides they want to rescind a job offer or discipline an employee because of that opinion.
Off-Duty Conduct Laws
Certain states also have some type of off-duty conduct law that protects an employee’s lawful activity off the employer’s premises during non-working hours. These state laws vary in the level of protection they offer employees, but they definitely could apply in situations where an employer learns of an individual expressing controversial opinions in a public setting.
This is not a comprehensive list. You will want to check with your employment counsel to determine whether any other laws exist in your jurisdiction that could prevent you from taking action against employees or applicants in these situations. And while the application of these laws to private employee conduct is still developing, off-duty conduct laws are beginning to provide protection over conduct that has long been otherwise unprotected.
What Should You Do?
Once you have a firm grasp on what the law allows in the jurisdiction in which you operate, you are left with a choice about whether your organization wants to take action in such situations. Some considerations to take into account:
Once you take all relevant factors into account, make sure your company consistently applies your workplace conduct policies. If you don’t have such policies, now is the time to develop them. And if you do have policies in place, you will want to work with your legal counsel to ensure they are up to date given that the legal standards have recently shifted when it comes to how workplace conduct can be addressed.
Have your managers ensure they coordinate with HR staff or legal personnel before taking action to ensure consistency and compliance with the law. Consistency is key – if some employees are punished for voicing their opinions about particular issues when other employees are not, this opens the door to potential litigation down the road.
Conclusion
At one point or another, you may have to deal with a situation where a worker or applicant expresses a controversial personal opinion that may not align with the ethos of your company. Navigating this properly is of critical importance to minimize risks of litigation.
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