Political Activity from the Remote Office: Employer Considerations

Labor & Employment @lert

Date: June 11, 2020

The killing of George Floyd by a police officer is just one of the latest examples of the racist, hateful and despicable treatment Black people and other people of color have received in this country over the past 400+ years. This tragedy has led many throughout the country to march, protest and engage in other displays of social activism in the streets, on social media and in the workplace, leaving some employers wondering if or how they can address employees’ engagement in these activities.

The COVID-19 pandemic has resulted in a dramatic increase in the number of employees working remotely. Remote work occurs in the kitchen, living room, a home office or even on the back porch. The line between the workplace and an employee’s private life has become more blurred than ever. While most conduct or discussion related to these heated topics will hopefully contribute to a more inclusive and open culture, some employee conduct or speech may impact productivity, morale or other employees’ civil rights. Before disciplining an employee for such conduct, however, it is important to consider several important issues.

First, does the conduct violate the company rules or policies published in the employee handbook? It is important to act judiciously and after thorough consideration. Second, if it does violate a company rule, is the conduct protected? There are two primary sources of protection for such conduct: the National Labor Relations Act (NLRA) and state off-duty/political conduct statutes.

The NLRA prohibits retaliation against employees who engage in protected, concerted activity related to working conditions. The National Labor Relations Board (NLRB) has ruled that such protected, concerted activity includes the right to use social media to share information about working conditions with coworkers. While the NLRB softened its position on employer social media policies in its 2017 Boeing decision, rules that interfere with workers’ rights to complain about their employer and discuss their terms and conditions of employment with each other remain unlawful. Now is a good time to review a company’s social media policy to ensure it is compliant with recent NLRB decisions. While general political speech usually will not qualify as an employee’s protected discussion of terms and conditions of employment, expressing concerns about racial injustice could include complaints about terms and conditions of employment. Accordingly, we recommend that employers tread carefully in this area.

Finally, employers must also consider that various states and municipalities have passed statutes explicitly protecting political activity and/or other off-duty conduct, including California, Colorado, Illinois, Iowa, Louisiana, Minnesota, Missouri, Nebraska, New Mexico, New York, Nevada, North Dakota, South Carolina, Utah, West Virginia and Washington, D.C. Depending on the type of conduct at issue, an employer must evaluate whether the conduct is protected before meting out any discipline for off-duty activities.

How a company responds to employees’ statements and behavior can define its business to employees, recruits, customers and the public at large. Although there are legal limitations and obligations on an employer’s ability to address all forms of distasteful behavior and speech by its employees, affirming its commitment to workplace diversity and inclusion can positively impact both productivity and employee morale.

FOR MORE INFORMATION

For more information, please contact:

Nancy M. Barnes
216.566.5578
Nancy.Barnes@ThompsonHine.com

Deborah S. Brenneman
513.352.6638
937.443.6600
Debbie.Brenneman@ThompsonHine.com

Eric S. Clark
513.352.6555
Eric.Clark@ThompsonHine.com

Megan S. Glowacki
513.352.6503
Megan.Glowacki@ThompsonHine.com

or any other member of our Labor & Employment group.

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