Off-duty issues and activities, and their impact at the workplace, seem to be growing today. Social media protests have increased since the Black Lives Matter movement has intensified, and pandemic issues are not abating. Often, both as a practical and legal matter, these issues cannot be kept out of the workplace.Off-duty issues and activities, and their impact at the workplace, seem to be growing today. Social media protests have increased since the Black Lives Matter movement has intensified, and pandemic issues are not abating. Often, both as a practical and legal matter, these issues cannot be kept out of the workplace.
For several years now, employers have struggled in dealing with social media protests and whether company rules can limit such speech. There are further questions of whether it is a good or bad idea to attempt to limit such speech. The answers are quite complicated.
The policies of the National Labor Relations Board (NLRB) have dictated for decades that much speech and activity is "protected concerted activity," even if it does not relate to union activity. Classic examples would be group activity in support of safety conditions such as the pandemic, or protests against any form of discrimination in the workplace. While the doctrine of "employment-at-will" may exist, it is overridden by exceptions under various discrimination laws as well as the laws pertaining to protected concerted activity. Protests dealing with immigration issues also may overlap and on occasion be considered protected concerted activity.
Many employers themselves now feel compelled to speak out on public issues, including discrimination issues, immigration, and the like. A further complication is addressing what is protected versus what is considered offensive, racist, or sexist. A recent case, for example, involved a Google employee who spoke out against affirmative action efforts towards females, writings that arguably contained both protected and unprotected speech. Imagine the confusion if an employer is confronted with several employees wearing "White Lives Matter," and or "Black Lives Matter" t-shirts. The goal of employers in providing a respectful and harassment-free workplace is increasingly difficult. It would appear that the same guidelines in theory apply to online comments as to saying something in person.
These complicated issues over social concerns and protected concerted activity overlap with the controversial issue of regulating off-duty conduct by employees. Such a rule sometimes offends employee attitudes towards their rights, and also many states have laws protecting lawful off-duty activities for employees. These issues become further complicated when employers attempt to avoid the spread of COVID-19 by advising employees to avoid close contact with people outside their workplace and to stay away from mass gatherings to maintain proper social distancing. This gets even more complex when a person may be infected with the virus and questions are asked about off-duty activities and contact with other persons. (This does not suggest being silent on these matters, just to be cautious.)
Activists and even labor organizations are making leadership efforts to support walkouts and other activities more directly affecting employers. Some of the walkouts are only brief, to make a point, but some walkouts are spontaneous, such as over safety practices or pay practices during the pandemic.
Employers need to respond to these situations in legally appropriate ways, with increasing emphasis on employee morale and practical significance as well. It is not going to be easy! Our firm would love to have comments and suggestions regarding these issues, and any written comments could be sent to the editor at jww@wimlaw.com.
