Companies Tackle Free Speech, Legal Risks, and Social Media as Political Discussion is Unavoidable

An excerpt from Boiling Point: Communications, Political Conversation, Free Speech & The Law hosted by Davis+Gilbert.

Davis+Gilbert partners Michael Lasky and Jessica Golden Cortes shared common myths and takeaways for communications leaders tackling political discourse in the workplace and on company platforms — one of the hottest issues facing clients and agencies — at our first Industry Member discussion on October 10.

The first in a series of in-person events that bring industry leaders together to address industry issues hosted by Davis+Gilbert, Boiling Point: Communications, Political Conversation, Free Speech & The Law, provided legal context for policies and their implementation in a complex regulatory landscape.     

The discussion began by acknowledging that while the challenges communicators face aren’t new, they are not going away soon. Although the election may be nearing its end, the issues won’t be resolved by November 5th. Ongoing conflicts in Ukraine and the Middle East continue to heighten tensions in the workplace, noted moderator Simon Erskine Locke, CEO of CommunicationsMatch™, following an introduction by CommPRO Publisher Fay Shapiro.

Lasky and Cortes shared a number of important takeaways and cases at the discussion.

Be Prepared

Addressing the question, why focus on this issue now, Michael Lasky quoted Louis Pasteur, “Chance favors the prepared mind.”  Adding a point made several times, “an ounce of prevention is worth a pound of cure,” he stressed the importance of having policies in place that reflect the challenge companies are facing every day. It is not a matter of dusting off existing policies, policies need to be updated to reflect the current environment – an environment of remote and hybrid work in which social media is the current day “water cooler” where conversations are happening by and between co-workers. “Policies are setting the table, they are not the meal,” he added. Training and implementation are key.  

Companies Need to Make Clear Expectations Around Employee Comportment 

Jessica Golden Cortes shared that when Davis+Gilbert is routinely brought into review corporate policies they are often largely silent with regard expectations around employee communications in the workplace, particularly on company systems such as email and other internal communications channels.  “It is important to set expectations and the time to do it is now.” Although companies cannot tell employees what to think or how to vote, it is legally permissible to make clear that at work, they should be focused on work and not personal or political discussions that could impede others’ comfort in their workplace environment.         

The Myth and Complexity of Free Speech  

It is a common misconception  that employees have the right to say what they want in a private workplace because they have a right to free speech under the First Amendment to the Constitution. Lasky highlighted the text of the First Amendment that is often overlooked, “Congress shall make no law prohibiting free speech,” which means, the first amendment has no bearing on what a private employer can do.

Cortes noted a number of complexities around free speech and where it may bleed into discrimination. “At federal, state and local level, you cannot discriminate based on protected classes.”   In most states political ideology/affiliation are not protected classes - Washington, DC and Seattle are exceptions; however, she reminded attendees that most of the time when people are talking to each other about politics, they are talking about issues that touch their benefit employees’ protected classes and therefore could create legal risk if employees feel harassed or discriminated against by those discussions . This can create significant issues and is very nuanced. It is also important to recognize that under Section 7 of the National Labor Relations Act, some political speech of employees may be protected, particularly if it relates to unionization or other concerted activity. 

Off-Duty Legal Conduct Laws Do Not Mean a Company Cannot Take Action  

The dividing line between what employees do at work and in their own time is not as clear as they might like to believe. Legal off-duty conduct laws do state that employers cannot discriminate based on what an employee does during their time off, shared Cortes. But there is a critical exception in many of these statutes, “employers can take action if what a person is doing creates a material conflict of interest with the company or its business interests.” In one of the cases discussed at the breakfast, an employee who had participated at the Charlottesville white nationalist march in 2017, was fired from his job because social media posts that showed the employee participating had a material adverse impact on its business. 

Balancing Risk 

As Lasky shared, one of the benefits from having a policy and enforcing it, is that it impacts the behavior of other employees. “If you don’t enforce the policy, it’s better to have no policy at all.”  It is essential to review and evaluate the risks around firing an employee based on a review of the facts in each case, knowing that a failure to take action has the potential to encourage employees to escalate workplace conduct and statements, which impedes workplace inclusion and creates greater risk of a legal claim. 

This event is part of the CommPRO + CommunicationsMatch™ industry membership program. We’d like to thank Davis+Gilbert for hosting the discussion.