Employers Must Have Strong Speech Policies in a Divided America

Reaction to the assassination of Charlie Kirk has exposed deep fissures in American society. Those divisions mix partisan politics with polarizing issues such as gun rights, immigration, race, national origin, gender, religion, and gender identity. Media outlets have reported a wave of terminations of employees for social media posts about the assassination.

In the current climate, private employers should take a fresh look at their approach to political speech by employees.

Employers must face the reality that the workplace isn’t immune from politics. Polls show that many Americans regularly talk about politics at work. Political discussion at work can create strife, affect retention of talent, and distract from the business.

And as recent weeks have shown, social media posts about politics are frequently public, or shared so widely that they are visible to coworkers, customers, shareholders, or others. An employee may report a screenshot of a coworker’s post to HR; a customer may write the company to complain; or online campaigns may erupt to pressure the company to take a particular action.

Employers may feel caught in a bind: If the employer doesn’t discipline the employee, it may face reputational risk, boycotts, and the risk of litigation from other employees over failure to act, particularly if the posts can be characterized as discriminatory.

And if an employer does choose to terminate a worker’s employment over political expression, the ex-employee may file suit that—even if ultimately not meritorious—is both costly and public.

So, what should private employers do to draw boundaries that mitigate legal risk, lower the office temperature, and maintain a respectful and harmonious workplace?

READ MORE: Kirk Commentary Firings to Test Public Worker Speech Protections

1. Understand the Legal Framework

Employees of private employers don’t have First Amendment protection from employer discipline for free speech at work or outside of work. However, certain state laws protect employees’ right to political expression and off-duty conduct.

The National Labor Relations Act protects employee speech about workplace conditions, even in non-unionized workplaces. Employees’ conduct, even if online or offsite, can give rise to employer liability, such as for discrimination, hostile work environment or harassment, if it implicates the workplace.

2. Update Policies for the Current Climate

Employer policies create the key safeguards in this space. Anti-discrimination policies should be updated to make clear that they apply even when employees aren’t physically in the workplace.

A social media policy can set clear boundaries on employees’ use of social media, such as by specifying that an employee cannot post content that reveals trade secrets, is discriminatory or harassing, or damages the company’s reputation.

Some employers will opt to have a specific policy around political speech or maintaining a respectful workplace. These policies must be drafted carefully so as not to run afoul of the NLRA or state laws.

3. Invest in Training

Training is an important part of a proactive approach to workplace divisions over politics. Training can educate the in-house legal team on the legal framework, and the human resources team on understanding the legal boundaries, and how the policies apply to political speech.

Such training can address how to facilitate difficult conversations between employees about politics or the employer’s view that such discussions shouldn’t occur at work.

4. Foster a Culture of Respect

Just as important is fostering a culture of respectful dialogue, tolerance for differing viewpoints, and a clear sense of professional boundaries. It’s important to avoid making assumptions that everyone at work thinks the same way—chances are they don’t. Corporate leaders and managers can set a professional tone in their own use of social media such as LinkedIn.

5. Consider a Reminder at Inflection Points

When a particularly explosive flashpoint erupts online, employers may consider reminding employees about prudent use of social media and appropriate workplace conduct.

In doing so, the employer need not wade into the substance of the flashpoint. Instead, the message can simply remind employees to exercise sound judgment on social media and with coworkers and clients, and link to the relevant policies. The reminder may help employees pause before acting rashly.

6. Stick to Your Policies and Values—Not Those of Outsiders

In today’s environment, employers can face tremendous pressure to take a particular action on an employee’s social media post or conduct captured online. But rather than be buffeted by outside forces, the employer should remain true to its own core values and policy framework.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Dawn Solowey and Sam Schwartz-Fenwick are co-chairs of, and Daniel Klein is a member of, Seyfarth Shaw’s Cultural Flashpoints Task Force, which assists clients with cultural flashpoints counseling, litigation and investigations.

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