Activism in the workplace

Bernadette Starzee, BridgeTower Media Newswires

Houston Rockets General Manager Daryl Morey touched off a firestorm last month when he tweeted his support for Hong Kong protestors and their resistance against the Chinese government. His statement defending human rights – which may have seemed like a no-brainer at the time – resulted in the Rockets and the National Basketball Association losing millions of dollars in revenue when Chinese partners pulled out of broadcast and sponsorship deals and canceled NBA games that had been scheduled to take place in China. In the wake of the controversy, team and league leaders have struggled to appease their Chinese partners and fans while staying true to values of free speech and civil rights.

Although the fallout may be smaller in scope, many employers grapple with potential repercussions when an employee publicly posts a controversial message on social media.

“One thing we all have to bear in mind is that even on our own personal social media page we are still representing our company,” said Howard Miller, a member of law firm Bond, Schoeneck & King who is based in Garden City and concentrates his practice in labor and employment law. “If someone is looking to hire my law firm to represent them, they might google me. And if there’s a picture of me sitting by a keg and looking drunk, with half-drunk plastic cups all around, it’s a reflection on my firm. Or if a company sales rep has all manner of foul language on his social media, people might not want to do business with that company.”

When an employee expresses strong opinions on hot-button issues that are counter to those held by the employer or its clients, it may similarly set off a controversy.

In the private sector, employees do not have First Amendment protection of free speech at work, but there are exceptions. The National Labor Relations Act protects employee discussions about the terms and conditions of their employment, including wages and benefits. New York Labor Law Section 201-D prohibits employers from refusing to hire or from terminating workers for engaging in lawful recreational activities, such as sports, hobbies or watching TV, or political activities, including running for office or campaigning or fundraising for a candidate for public office, on their own time and on their own equipment.

Posting on social media could fall under recreational activities, when an employee does it on his own time and his own equipment as opposed to a company mobile device or computer, said Kimberly Malerba, a partner at Uniondale-based Ruskin Moscou Faltischek who chairs the firm’s employment law and digital media practice groups.

However, if the employee’s recreational activities create a material conflict of interest related to the employer’s trade secrets, proprietary information or other proprietary or business interest, they are not considered protected.

“If the individual is an employee of Planned Parenthood and they go online and are very outspoken as an anti-abortion activist, that could be considered a direct material conflict of interest with the employer’s mission,” Malerba said, noting the employer could potentially take action that could include a warning or termination.

In an increasingly polarized nation, the nature of political discussions, both on social media and in person, have become more volatile. Under Section 201-D, an employee cannot be disciplined for supporting a particular politician, but hate speech is another story.

“It’s one thing to say, ‘I support Donald Trump,’ and another to post that you support a ban on every Muslim being in the country,” Miller said. “It’s one thing to say you don’t like Elizabeth Warren, and another to say all women belong in the kitchen. What an employee posts on Facebook can make coworkers uncomfortable and, when it’s based on a protected characteristic, contribute to a hostile work environment.” Protected characteristics include sex, age, race, national origin, religion, disability and sexual orientation.

Often, discriminatory posts come to an employer’s attention because a co-worker is friends with the poster on Facebook (or other social media) and sees the offending post. If the post is public or if co-workers are part of the poster’s closed circle and therefore can see it, it can violate the employer’s anti-discrimination policy and provide a basis for disciplinary action, including termination.

“If someone posts hateful slurs about a certain race or nationality and the employer doesn’t take action, and other employees see the post and are potentially victimized by it, the employer may be liable for permitting a hostile work environment,” Malerba said. Further, a hateful public post could lead to push-back from clients, and the employer may wish to distance itself from the message by terminating the employee.

“If someone’s social media is hate-filled, is it really someone that you want working for you?” Miller said. “I think you have to say this person can’t be the face of our company or our team or our organization. There are some companies that have a real social consciousness – they make sure vendors in foreign countries comply with American labor laws – and they take a stand that they are not going to allow hate speech.”

But in those cases in which an employee’s activism is lawful, an employer should tread carefully when taking disciplinary action.

“Do we really want our company reputation to be so intolerant that if you don’t share our views on a political candidate or an issue that we’ll fire you?” Miller said. “Wouldn’t you be nervous working for a place like that?”
Employers can also face a wrongful termination claim for violating worker’s rights under the New York Labor Law or NLRA.

Companies should establish a social media policy regarding what is permitted and not permitted on company devices and on company time and communicate it to their employees, Malerba said.