Kirk’s Killing Cautions Employers To Consider Speech Policing

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Webinar Key Takeaways

Failure to proactively manage employee speech in today’s hyper-polarized environment is a gamble with your company’s market value and legal standing. If you allow your policies to remain vague or your responses to be reactive, you risk multi-million dollar consumer boycotts, devastating "cancel culture" backlashes, and costly litigation from the National Labor Relations Board (NLRB). In a world where a single social media post can alienate 50% of your customer base overnight, "doing nothing" is a high-risk strategy that can lead to irreparable brand damage and internal workforce disruption.Priority Legal Safeguards

• Insert "Section 7" Disclaimers: Immediately add a disclaimer next to any workplace rule regarding conduct or social media stating: "This rule will not be interpreted or applied to prohibit activity protected by Section 7 of the NLRA." This simple technicality can be the difference between a lawful policy and a federal labor violation.
• Narrow Your Rules on "Falsehoods": Review your handbook for any blanket bans on "false statements." Courts often find these "chill" legitimate speech. Instead, specifically prohibit "maliciously false statements" to protect your right to discipline while staying within legal boundaries.
• Audit Your Policy for Political Neutrality: Given the 50/50 political split in the country, shift away from taking corporate stances on divisive issues. A neutral stance protects you from the "dual boycott" trap where you are attacked by both the left and the right.

Workplace Environmental Controls

• Standardize Postings and Insignia: Limit all physical employee postings to one designated bulletin board. If you allow employees to post "anything" anywhere in your facility, you legally lose the ability to stop them from posting union organizing materials or highly controversial political paraphernalia.
• Enforce Dress Codes Consistently: Maintain a clear dress code regarding political buttons or apparel. Be aware that if you allow one political movement’s insignia (like Black Lives Matter), you may legally be forced to allow opposing movements to avoid discrimination claims.
• Control Company Resources: Explicitly prohibit the use of company computers and email for personal social media or political advocacy during "working time." While the rules for "non-working time" change with political administrations, controlling the clock is your strongest immediate lever.

Incident Response and Management

• Prioritize Counseling Over Termination: In borderline cases, use "counseling" or sit-down meetings before moving to discharge. Most speech issues can be resolved through direct conversation, which carries significantly less legal risk than a termination that could be framed as "retaliation."
• Document Evidence Instantly: If a controversial post is reported, secure a screenshot immediately. Social media posts are frequently deleted or edited; you cannot build a legal defense or a termination case on hearsay without the original digital evidence.
• Distinguish Between "Protest" and "Harassment": When an employee complains about working conditions, check if they have crossed the line into disparaging a protected class (e.g., gender or race). As seen in the Google case, you can lawfully terminate an employee if their "speech" violates your equal opportunity principles, even if the rest of their complaint is protected.

The stakes of modern speech policing require you to move away from broad, emotional reactions and toward a surgical, legally-insulated framework. By anchoring your policies in specific NLRB disclaimers and favoring internal counseling over public terminations, you protect your company from both the courtroom and the courtroom of public opinion.

James W. Wimberly (00:00):

Welcome everyone to our Friday webinar. Today’s subject is "Speech Policing," focusing on why employers should exercise caution. I find this subject academically stimulating and fascinating because it involves employee relations, politics, and various other factors. You may ask questions during the program or during the session at the end.

James W. Wimberly (01:18):

Let’s address the background of these current problems. For about 15 years, up until recently, polls indicated that employees and the public wanted employers to take stands on public and political issues. Many employers did so, advocating for legislation regarding the minimum wage, discrimination, or DEI (Diversity, Equity, and Inclusion). However, there is now a backlash against employers taking political stands.

For example, Bud Light was the most popular beer in the United States for years. However, after an ad featuring a transgender person, there was a massive consumer reaction. Budweiser lost billions of dollars in market value because of the resulting controversy. This is a case where a company’s attempt to promote equal opportunity backfired in the marketplace.

James W. Wimberly (02:38):

Another example is Target. Over the last year, Target has been caught between both sides. After dedicating a portion of its stores to Pride merchandise, right-wing groups organized a boycott. Affected by the market reaction, Target removed the products. This triggered a second boycott from the left, arguing that Target should not have dropped those products.

Employers have become timid about advocating political positions because the country is divided nearly 50/50. An employer may appeal to half of their workforce or consumers while alienating the other half. Current opinion generally discourages employers from taking political stances.

James W. Wimberly (03:55):

Recent hot-button issues generating interest in employee speech include Black Lives Matter insignia, the Gaza-Palestine conflict, and DEI issues. For example, Alaska Airlines recently disciplined flight attendants for posting social media comments opposing a company article that supported sexual orientation legislation. The employees were terminated, leading to a lawsuit.

James W. Wimberly (05:11):

There is also continuing litigation regarding Black Lives Matter buttons in the workplace. While most rulings suggest an employer can maintain a dress code limiting political paraphernalia, the issue remains contentious. There is often a fear that if you allow one type of insignia, you must allow others, such as "White Lives Matter" or "All Lives Matter" imagery.

James W. Wimberly (06:26):

The most recent catalyst for this program involves comments regarding Charlie Kirk. While he was a witness for the Christian faith with an impact on college campuses, he was also a conservative political advocate. Some employees made posts suggesting "we just knocked off another Nazi." When such comments generate internet controversy, management often calls asking if they can terminate the employee.

James W. Wimberly (08:25):

There is no standard answer to these issues. If an employee is critical of a supervisor regarding working conditions and it involves other employees, that may be a "concerted complaint" protected by the National Labor Relations Act (NLRA).

James W. Wimberly (09:39):

Section 7 of the NLRA protects employees engaging in concerted activity for "mutual aid or protection" related to working conditions. This means we cannot fire or discipline someone for exercising this specific right of free speech.

The first question is whether the speech relates to conditions of employment. For example, I have a pending case involving an employee who protested a governor’s veto of a medical reimbursement bill. While the money went to the employer, the employee's compensation was tied to those reimbursements. Therefore, the protest related to his pay and was a topic of interest to his colleagues.

James W. Wimberly (11:56):

The second aspect is whether the way the protest is made is permissible. You cannot commit acts of violence or deface property. Finally, the action must be "concerted." The NLRA is designed to protect group actions aimed at improving working conditions, even if a union is not involved.

James W. Wimberly (13:16):

Matters become complicated when employee speech contains both protected and inappropriate elements. A famous case involved a Google employee with an advanced degree who protested the company's affirmative action program. This was a legitimate complaint regarding employment conditions. However, he also argued that female employees were academically inferior in math and should not receive certain promotions.

James W. Wimberly (15:30):

Google's president issued a very smart termination letter. It stated that while the company appreciated his right to complain about equal opportunity, his comments disparaging the qualifications of a specific gender were offensive to company principles and caused disruption. Google won the subsequent legal battles because the letter carefully distinguished between protected protest and unprotected, offensive speech.

James W. Wimberly (17:36):

Other factors include discrimination laws (Title VII), which prohibit retaliation against employees asserting rights related to race, sex, religion, or disability. Some states—about 25% or fewer—also have laws protecting employees from discipline for legal off-duty conduct, such as smoking.

James W. Wimberly (20:00):

Note that the First Amendment applies to government employees, not private employers. Do not confuse the rules for public sector workers with those for private companies.

James W. Wimberly (21:08):

There is a trend toward standalone social media policies, but the devil is in the details. Rules are applied differently depending on the political administration in power. Democrats generally require rules to be "narrowly tailored" to legitimate business interests.

For instance, I recently reviewed a handbook that prohibited "false statements." I advised the employer to change it to "maliciously false statements." The Labor Board often finds that a blanket ban on "false statements" chills legitimate speech, as employees may fear being accused of falsehoods when complaining about management.

James W. Wimberly (23:53):

If you are drafting a sensitive rule, add a disclaimer stating: "This rule will not be interpreted or applied to prohibit activity protected by Section 7 of the NLRA." Place this disclaimer directly next to the controversial rule rather than at the end of the handbook.

James W. Wimberly (25:48):

Employers have the right to control postings on company property. You should limit employee postings to a single, designated board. If you allow employees to post anything anywhere, you may be legally required to allow union organizing materials or other controversial items.

James W. Wimberly (26:54):

Employee postings are generally not protected if they are egregiously offensive, knowingly false, or disparage the employer’s products without relating to a labor controversy. Regarding company equipment, you can generally prohibit social media use during working time. Whether you can prohibit it on non-working time often depends on the current political makeup of the Labor Board.

James W. Wimberly (28:14):

Sometimes an employer is required to react to off-duty speech. If an employee’s post creates a hostile work environment or involves harassment of a coworker, the employer has a legal obligation to address it. Failing to act can damage your reputation and set a poor example for the workforce.

James W. Wimberly (30:27):

Before taking action, consider the legal risks. In debatable situations, I often recommend "counseling" (or what some call "browbeating"). Sitting down with the employee to explain the problem and asking for their help in a solution works 90% of the time with very little legal risk. You don't always have to fire someone to fix the problem.

James W. Wimberly (33:43):

If you receive a complaint about a post, identify the source. Is it reliable? Always try to get a screenshot of the actual post before it is deleted or changed. Your attorney will need to see exactly what was said.

In our sensitive society, we must be particularly vigilant regarding statements related to potential violence. While there is no general law prohibiting discrimination based on political views, the numerous exceptions regarding protected concerted activity and retaliation make these issues very complex.

Thank you for your attendance. Have a good day and a good weekend.