Supreme Court<\/a> decisions.\n<\/p>\nIn its 1968 decision in Pickering v. Board of Education, the Supreme Court held that public employees do not surrender the right to speak out on matters of public concern simply by accepting public employment.\n<\/p>\n
The court went on to hold that the permissible scope of that right in a given case involved the balancing of the employee\u2019s interest in commenting on public matters against the state\u2019s interest in promoting the efficiency of its workers in providing public services.\n<\/p>\n
The court later built on the Pickering standard by adopting a two-part test for public employee speech in its 1983 decision in Connick v. Myers.\n<\/p>\n
The Connick-Pickering test calls on courts to first decide whether the employee speech in question truly addressed a matter of public concern and, if so, whether the employee\u2019s free speech interests outweighed the public employer\u2019s interest in maintaining an efficient workplace free from disruptions.\n<\/p>\n
Noting that the speech protections for employees of private employers are more \u201cnuanced,\u201d Solowey pointed to federal and state laws prohibiting discrimination against protected classes and labor laws protecting unionizing activity.\n<\/p>\n
Section 7 of the National Labor Relations Act guarantees employees \u201cthe right to self-organization \u2026 and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.\u201d\n<\/p>\n
Apart from speech protections under nondiscrimination laws and the NLRA, Herman said employers need to tread carefully when addressing employee posts that might come under the protection of whistleblower laws.\n<\/p>\n
\u201cPeople might be posting about illegal conduct going on in the workplace,\u201d she said.\n<\/p>\n
Solowey said there are some state statutes that regulate when an employer can take action based on political speech for off-duty conduct.\n<\/p>\n
\u201cSo those have to be weighed by the employer,\u201d she said. \u201cIn an era where employers have employees from a lot of different states and who may work remotely, that\u2019s one of the first questions we will ask: \u2018Where does the employee work and live?\u2019\u201d\n<\/p>\n
In terms of the laws of other states, Belfort said California, Colorado and New York are among those that have laws protecting the rights of employees to speak freely about political activity and social activism unrelated to work when they are off duty.\n<\/p>\n
It is important for employers to be reasonably consistent in the way that they handle these [posts] and not react based on the political or cultural viewpoint expressed, but instead on whether or not there\u2019s a violation of the employer\u2019s policies.\n<\/p>\n
\u2014 Dawn R. Solowey, Boston<\/p>\n
Solowey pointed to G.L.c. 56, \u00a733, as an example of a state law affecting an employee\u2019s right to speech that employers need to be aware of. The statute generally prohibits employers from influencing an employee\u2019s vote or political contributions by either offering inducements or threatening adverse employment actions.\n<\/p>\n
Belfort cited the Massachusetts Civil Rights Act as a source for the protection of speech that is limited in the private employment context.\n<\/p>\n
\u201cThe law does not yet allow for claims against private employers who interfere with an individual\u2019s ability to exercise rights through usual discipline, including termination, as these are not the physical threats, intimidation or coercion protected under Massachusetts law,\u201d Belfort said. \u201cThe employer\u2019s First Amendment rights, in the at-will employment context, seem to supersede those of employees who post things that the entity believes are controversial, threatening or pose a risk of reputational harm to the employer.\u201d\n<\/p>\n
Heightened threat environment<\/p>\n
Solowey co-chairs Seyfarth Shaw\u2019s Cultural Flashpoints Task Force, which was launched in 2023.\n<\/p>\n
\u201cWe formed the task force in response to what we were seeing in terms of the polarization in our society increasingly infiltrating the workplace,\u201d she explained.\n<\/p>\n
She noted that since the task force\u2019s debut, the October 2023 attack on Israel and the bitter 2024 election have occurred. Now, there\u2019s the Charlie Kirk assassination.\n<\/p>\n
\u201cIt\u2019s challenging to manage that kind of polarization in workplaces where you want to encourage people to bring their whole self to work. But when they do, people bring really strong opinions on really divisive issues, and those issues often intersect with protected classes,\u201d she said.\n<\/p>\n
Belfort agreed.\n<\/p>\n
\u201cThe lines when it comes to private employers and free speech relate to allegations of potential discrimination and disparate treatment,\u201d Belfort said. \u201cThe question is whether a post is connected to protected characteristics such as race, gender, disability or religion. The focus will be whether the content of the message touches on membership in protected classes and turns on how closely the post is tied to the workplace environment \u2014 whether it occurred on or off the job, is there a company policy, what is the policy, and is there uniform enforcement of the policy.\u201d\n<\/p>\n
Solowey said Kirk\u2019s death has added another element that makes it particularly challenging for employers striving to keep discord out of the workplace.\n<\/p>\n
\u201cOne thing that we\u2019ve really seen is there have been so many posts that have veered into celebrating or glorifying violence,\u201d Solowey said. \u201cEven if that isn\u2019t specifically prohibited by a social media policy, many employers view it as antithetical to their core values and something that reflects very negatively on their reputation. So that\u2019s been one of the lines in the sand that many employers have been drawing.\u201d\n<\/p>\n
Kirk was very outspoken on \u201cmany of the flashpoints of the day,\u201d Solowey noted.\n<\/p>\n
\u201cHe had strong and divisive positions on issues that touched gender, race, religion, sexual orientation, gender identity, gun rights \u2014 almost any flashpoint you can think of, he was out there with a strong point of view. And, so, in some ways it\u2019s inevitable that there are going to be social media posts that go at least up to the line, if not over it,\u201d Solowey said.\n<\/p>\n
Managing risk<\/p>\n
Solowey said clients are learning about problematic employee posts concerning the death of Kirk in a variety of ways.\n<\/p>\n
\u201cSometimes it\u2019s a colleague who has taken a particular screenshot of a particular post,\u201d she said. \u201cSometimes it\u2019s a customer or a client, some other stakeholder, or simply a member of the public who has identified the poster as someone who works for the company and is writing to alert the company to the post.\u201d\n<\/p>\n
In handling such issues effectively, Solowey said it is critical for employers to be \u201canchored in their workplace policies.\u201d\n<\/p>\n
\u201cMost employers have no interest in policing every political statement that their employees make,\u201d she said. \u201cThey understand that they have diverse work forces, that it\u2019s a polarized country, and that people are inevitably going to have very strong positions on all of these divisive political and cultural issues.\u201d\n<\/p>\n
The truly problematic posts typically will be those that the cross the line in terms of negative stereotyping of an entire protected class,\u201d she said.\n<\/p>\n
The determination of whether an employee\u2019s social media post has \u201ccrossed the line\u201d is essentially going to be an individualized inquiry, Solowey said.\n<\/p>\n
\u201cWhen I get these calls, the first thing I want to see is what do your policies say and exactly what does the post say. What words were used, what images are used,\u201d she said. \u201cThere\u2019s really no way of getting around doing an individualized assessment of the post. And not just exactly what it says, but also whether it was posted on a public forum or a more private setting. What is the impact on the workplace? What is the job role of the employer? It\u2019s going to be different if it\u2019s an executive speaking, who may be seen as the spokesperson for the company, versus the line worker.\u201d\n<\/p>\n
Apart from company policies, Herman said that terms in individual employee contracts, such as those for executives, may weigh on an employer\u2019s ability to take action against an employee.\n<\/p>\n
\u201cIf the contract includes a prohibition on [certain categories of] social media postings, a breach of that prohibition would be grounds for termination,\u201d Herman said. \u201cOn the other hand, if the listed grounds for termination do not include such conduct, the termination would be a breach by the employer.\u201d\n<\/p>\n
In deciding whether a particular post merits disciplinary action, Solowey said consistency is the key.\n<\/p>\n
\u201cIt is important for employers to be reasonably consistent in the way that they handle these and not react based on the political or cultural viewpoint expressed, but instead react based on whether or not there\u2019s a violation of the employer\u2019s policies,\u201d she said. \u201cIf they do that, then the employer is insulating themselves from [a claim of disparate treatment] because they will be able to show that they had a consistent \u2018through-line.\u2019 \u201d\n<\/p>\n
Pat Murphy reports for Massachusetts Lawyers Weekly.<\/p>\n","protected":false},"excerpt":{"rendered":"Listen to this article Key Takeaways: Charlie Kirk\u2018s killing intensifies disputes over employee social media posts. Teachers and…\n","protected":false},"author":2,"featured_media":199997,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[38],"tags":[28,49204,1005,15303,115239,134,105337,108,15304],"class_list":["post-199996","post","type-post","status-publish","format-standard","has-post-thumbnail","category-jobs","tag-business","tag-charlie-kirk","tag-employment-law","tag-first-amendment","tag-first-amendment-media-law","tag-jobs","tag-labor-and-employment-law","tag-social-media","tag-supreme-court"],"_links":{"self":[{"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/posts\/199996","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/comments?post=199996"}],"version-history":[{"count":0,"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/posts\/199996\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/media\/199997"}],"wp:attachment":[{"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/media?parent=199996"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/categories?post=199996"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/tags?post=199996"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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