Published in the Union Leader (10/9/2017)
Q. I have watched with interest the public debate about football players kneeling during the national anthem. I have also heard a lot of debate about what employers might do if they find out that their employees marched at the rally in Charlottesville. It started me thinking about what action I could take if one of my employees did something contrary to the values of my company. Is their speech protected? What about things they do on their own time?
A. As you might expect, there is no simple answer. As society becomes more polarized over issues of public interest and politics, the issue comes up more often. Generally, employers have the right to dictate behavior in the workplace, even if the workplace is a 60,000 seat football arena during a televised game. NFL team owners have the ability to insist upon certain behavior of their players, especially when in the team uniform. Most, this past Sunday, chose not to exercise that power, allowing the players to protest or show unity in whatever manner they chose.
Businesses must set expectations prohibiting employees from making racist, discriminatory or sexually harassing comments as they have legal obligations to provide workplaces free of harassment and discrimination. Therefore, you are free to insist that your employee take down a Swastika hanging in his cubicle or a “Black Lives Matter” poster on her file cabinet. However, be careful to be evenhanded in the way you address such issues. In other words, don’t ban the sentiments you disagree with while allowing those you like.
Once your employees are no longer on work time, regulating their activity becomes more problematic. For the most part, an employee’s time is his own. They can generally attend the political rallies, women’s marches, science marches, or pro-life rallies of their choice. After all, these are expressions of their personal political or religious views. When, however, work and personal life intersect, things may be different. If an employee’s out of work behavior has an adverse impact on the business, employers may address it as long as it is not legally protected. Protected activity includes whistleblowing and concerted activity such as union organizing. Certain employers like schools, day care centers or churches typically have a greater interest in the morality or public behavior of employees. The higher the level of the employee and the more she is identified with the business, the more subject she is to regulation.
Businesses which intend to regulate behavior outside of work should consider the following:
- Have clear policies outlining expectations and consequences. Employment agreements are preferred for higher level positions.
- Distinguish between criminal or morally reprehensible behavior and demonstrations of political or religious beliefs.
- Prohibit workers from identifying themselves as company employees when engaged in personal activities.
- Have social media policies vetted by counsel to make sure they are legally defensible.
- Apply policies and expectations even handedly to avoid claims of discrimination.
For the most part, employers should maintain standards and expectations of behavior at work while staying out of their employees’ private business. When the lines blur, employers should use restraint, rely on well written policies and act when the negative consequence to the business are significant. After all one man’s #makeAmericagreatagain is another woman’s #takeaknee.
Charla be reached at charla.stevens@mclane.com.
Know the Law is a bi-weekly column sponsored by McLane Middleton, Professional Association. We invite your questions of business law. Questions and ideas for future columns should be addressed to: McLane Middleton, 900 Elm Street, Manchester, NH 03101 or emailed to knowthelaw@mclane.com. Know the Law provides general legal information, not legal advice. We recommend that you consult a lawyer for guidance specific to your particular situation.