When Political Talk on Social Media Becomes a Workplace Issue

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By Madison Alder

A rise in the popularity of political discussion on social media could pose potential problems for employers, even outside of election season.

One of the biggest areas of concern for employers is making sure they don’t take actions that would interfere with an employee’s “right to engage in protected concerted activities”—a protection afforded under Section 7 of the National Labor Relations Act, Patrick Shea, chair of the employment law practice at Paul Hastings LLC, told Bloomberg BNA July 18.

It’s no secret that during the 2016 campaign, political candidates harnessed the power of social media more than ever before, David Garland, partner at Epstein Becker Green and chair of the law firm’s National Labor and Employment Steering Committee, told Bloomberg BNA July 18. Garland said he hasn’t seen a significant increase in cases about political discussion on social media in the workplace, but he suspects “we could see more of them.”

It depends on how employees express their thoughts on social media, Garland said. For example, if an employee endorses President Donald Trump’s travel ban on social media, the question might be: “Is he or she making comments expressly or by way of inference that could be perceived as anti-Muslim, and what is the impact of those comments in the workplace?”

If comments violate the company’s policy on harassment, that would be cause for the employer to take action, Garland said.

“The candidate that was elected used social media—particularly Twitter and Facebook—as his primary means of communicating with his potential voters and base and continues to do so,” Garland said of Trump. As a consequence, many people have turned to the platforms as source for political news, he said.

In an April report to shareholders, Twitter said it experienced a bump in usage between the last quarter of 2016 and the first quarter of 2017. Twitter’s Chief Operating Officer Anthony Noto said the jump could be attributed to more interest in political content.

“It might not be an overstatement to say the country is more divided than ever before,” Garland said. “People have not been reluctant or hesitant to share their political views on social media.”

Political Posts and the NLRA

Employers have a “greater scope” to regulate their employee’s social media use while they are in the workplace, Shea said, but “most employers do allow incidental personal use.”

“Potentially, that could extend to politically-related postings,” he said.

Labor law protections are primarily for employees to talk about issues within the workplace, like complaining about a supervisor, Shea said, but there can be overlap with politics.

If an employee in Wisconsin, for example, were to talk about the “right-to-work” law on social media, that would be an example of where politics mixes with work-related issues, he said. That type of posting could still be considered “protected concerted activity under the NLRA.”

Where Political Speech Meets Harassment

Shea echoed Garland’s remarks that he hasn’t seen an uptick in political social media cases in the courts. However, he said, the issue has come up when someone posts something “truly incendiary.”

“It can be particularly troubling if it also starts to worry an employer about impacting their equal employment opportunity obligations,” he said.

Many states, including New York, Connecticut, and California, have their own unique protections over political activity as it relates to employment, Shea said.

Employers “have to make sure they’ve done a thorough review of applicable state laws in the state where the policy is going to apply, and they have to be aware of what those restrictions are going to be like,” Shea said.

From Garland’s view, the mistake that many employers make when responding to social media concerns is forgetting to be forward-thinking.

“Problems always look bigger when they’re right there in front of you than they look in the rear view mirror,” Garland said. “It’s important not to overreact with policies that are too broad to address an issue that may not require such a broad policy.”

To contact the reporter on this story: Madison Alder in Washington at malder@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Chris Opfer at copfer@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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