In June 2020, we added a post to Employment Law Worldview addressing the complicated situation employers are in when employees express – sometime respectfully, sometimes not – different, and indeed, opposite views on COVID-19 issues (e.g., legitimate public health emergency versus hoax or “plandemic”), racial justice (“Black Lives Matter” versus “All Lives Matter”), and politics (“Make America Great Again” versus Antifa/the “radical left”).
With 2020 being what it is, it’s probably not surprising that not only have the sensitivities to these issues not abated, but they in fact have gotten even more acute. With the general election just weeks away and political acrimony and social upheaval at a level not seen since perhaps the 1960s, and further inflamed by the confirmation hearing of conservative Supreme Court nominee Amy Coney Barrett to replace the recently-departed liberal bastion of the Court, Ruth Bader Ginsburg, coupled with the risk of what portends to be a messy aftermath of the election on November 3, it’s no exaggeration to say that the opportunity for political-based conflict among employees is approaching the proverbial redline.
We’re therefore re-posting our blog post from this summer as a timely reminder to employers and employees of their respective rights and obligations as we head into what promises to be a tumultuous few months.
We’re living through a period of time in the US unlike any we have previously experienced, simultaneously grappling with a deadly public health emergency, mass protests – some peaceful, some not – seeking racial justice and police reform, and an increasingly bitter, partisan political landscape that likely only will intensify as we get closer to Election Day in November 2020. With each of these momentous issues comes a wide spectrum of individual opinions. Some view governmental actions taken in response to the COVID-19 pandemic as overblown and disproportionate to the risk, with shutdown orders and face-covering mandates intruding on personal freedoms and coming at the expense of economic stability. Others see these measures as unfortunate, but necessary for the public good. Support for the cause of racial justice and the Black Lives Matter movement is greater than ever before, but certainly not universal. And the current political climate is more acrimonious than it has been in decades, stoked by intense feelings on both sides of the proverbial aisle.
Against this backdrop, employers are primarily focused on doing what they can to return their businesses to normalcy, while at the same time implementing appropriate measures to provide their employees with a safe and healthy work environment. But it’s inevitable that, with this unprecedented trio of health, social, and political issues being ever-present in every employee’s daily life, they will be the subject of discussions among employees in the workplace. It’s also inevitable that with a wide range of viewpoints on each of them, conflict, to some degree, will arise in the workplace.
So what should an employer do when employees butt heads (hopefully only figuratively) over whether they should be required to wear a mask in the workplace (or elsewhere)? Or when an employee who outwardly supports the Black Lives Matter movement is confronted by a coworker who claims that the BLM movement is itself inherently racist because “all lives matter?” Or when an employee wears the now ubiquitous “Make America Great Again” red baseball cap to work, angering coworkers who strongly believe, rightly or wrongly, that the hat symbolizes actions and policies with which they passionately disagree?
As a child of the 1980s, the current upheaval brings to mind the lyrics from “People are People,” the first US hit (in 1984) from UK electronic music band Depeche Mode:
People are people so why should it be
You and I should get along so awfully?
People are people so why should it be
You and I should get along so awfully?
So we’re different colors, and we’re different breeds
And different people, have different needs
It’s obvious you hate me, though I’ve done nothing wrong
I’ve never even met you, so what I could I have done?
I can’t understand
What makes a man hate another man?
Help me understand…
Taking a perhaps overly-simplistic cue from the suggestion in these lyrics, the first response any employer should have to conflict between coworkers based on divergent ideologies should be to deescalate the conflict by reminding employees that although they can disagree with each other, they should do so in a mutually respectful manner. It’s simple common sense, but employees should be reminded that verbal or physical fighting or similar misconduct will not be tolerated and will result in appropriate disciplinary action. Conflict that involves behavior inconsistent with an employer’s equal employment opportunity policies, such as comments by one employee to another of a racial or other prohibited character, should be addressed promptly through a reasonable investigation and appropriate disciplinary response.
But what about when the nature of the conflict is not so clear-cut, for example, when one employee demeans another employee’s efforts to maintain social distancing, or wearing of a face mask as “being a sheep” or a puppet of the “radical left?”
It’s almost inevitable that an employer attempting to deal with conflict among employees expressing different perspectives on these or other hot button issues will hear something to the effect of “I have a right to say what I want,” or “what about my right to free speech,” or “I have a First Amendment right to speak my mind.” Those sort of comments however reflect a misunderstanding of the First Amendment.
As it relates to free speech, it’s important to understand what First Amendment protects, and importantly, what it does not. This is the relevant text of the First Amendment:
Congress shall make no law … abridging the freedom of speech …
Note that it does not say “no person shall … abridg[e] the freedom of speech.” Instead, the First Amendment only restricts the federal government from intruding on citizens’ right to free speech. That right extends to state and local governments through application of the Fourteenth Amendment. But, put bluntly, the First Amendment has no application whatsoever to a private employer’s relationship with its employees. Indeed, a private employer is perfectly within its rights, and does not violate the First Amendment in any way, if it chooses not to hire an applicant, or to discipline or even discharge an employee, if it disagrees with that applicant’s or employee’s speech. So, for example, an employee who claims that COVID-19 is a hoax or is caused by 5G cell phone signals, or who makes racist comments or otherwise maligns the cause of racial justice, or who is critical of others based on their political affiliations or expressions, has no Constitutional protection from adverse consequences if his or her employer chooses to take adverse employment action against him or her for these positions.
That isn’t to say that there are no protections for employees’ expression of their viewpoints. Connecticut prohibits employers from disciplining or discharging employees for exercising their free speech rights, provided that exercise does not interfere with the employee’s job performance or relationship with his or her employer. California prohibits employers from discriminating against employees because of political affiliation or activities; many other states, including Colorado, Missouri, and New York, have enacted laws that protect employees’ political and/or voting rights. Some states, such as Illinois, prohibit an employer from taking adverse action against an employee who uses lawful products during non-working hours, which could be interpreted to protect an employee’s use of social media platforms to express their viewpoints on controversial subjects.
Another area where employees may have protection from adverse consequences flowing from expressing their viewpoints is under the National Labor Relations Act, which protects employees’ right to engage in protected concerted activities as they relate to wages, hours, or other terms and conditions of employment. So, if, for example, employees are complaining on social media about an employer not providing employees with hazard pay for working during the current pandemic, or criticizing an employer for not making Juneteenth a paid holiday, such conduct, if concerted with or on behalf of a group of employees, may be protected.
To be sure, employers must walk a fine line. On one hand, employers’ primary purpose is to engage in their chosen business activities. On the other hand, businesses must strive to provide a positive and safe work environment for their employees, without appearing to play favorites or seeming heavy-handed when responding to conflict among employees.
Most employers do encourage a diversity of opinions in the workplace, and recognize that as long it doesn’t interfere with their work, their employees should be able to express their opinions on the issues of the day. Candidly, it would be naïve to think that they won’t. It brings me back again to my beloved 1980s music, and Tears for Fears’ 1984 protest anthem, “Shout”:
Let it all out
These are the things I can do without
I’m talking to you
(Original version here, and an impressive 2019 live version, 35 years after initial release, here). And that’s the key – letting employees express themselves in an appropriate manner (granted, hopefully without shouting), and encouraging thoughtful and respectful coworker discussions, but balancing that with the employer’s legitimate requirement that its conduct policies be complied with and order maintained in the workplace.
Unfortunately, there are no easy answers here. Like everything else nowadays, it seems this is yet another area where employers must take it “one day at a time.”