Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘political speech’

Want To Speak Out About Politics at Work? Here Are 3 Things You Need to Know.

Tuesday, May 16th, 2017

In the past several months, there’s been a noted uptick in political speech at work. That speech has often made national news, from Sally Yates’ dismissal as interim attorney general to IBM workers organizing against their employer’s support of Donald Trump. In the early days of the Trump administration, the New York Taxi Workers Alliance’s strike against the Muslim ban at John F. Kennedy International Airport stood out as an impressive act of resistance and solidarity. And even before Trump’s election, Colin Kaepernick, then a quarterback for the San Francisco 49ers, sparked a national discussion when he refused to stand during the national anthem in protest of racism against African-Americans and other people of color.

Protests against the administration are building quickly, with diverse groups organizing mass protests against the administration’s policies. This month, on May Day—otherwise known as International Workers’ Day—thousands of workers across the country took to the streets to challenge Trump’s draconian and unconstitutional immigration policies. In all likelihood, political activity at work will only increase throughout the Trump administration, all of which begs the question: How protected are workers who talk politics on the job?

As it turns out, not very, at least legally. Though more than 40 percent of participants in a 2014 YouGov poll believed that the First Amendment protected them from retaliation for their workplace political speech, the truth is that workers have, at best, a patchwork of rights to talk politics at work.

Most private sector workers have no Constitutional protections to engage in political speech at work. However, they do have rights as workers. (Government workers have some limited First Amendment rights because the First Amendment applies to government action, but those rights aren’t always consistently defined.)

Though it can be difficult to navigate the maze of laws that regulates employment, there are some simple things to keep in mind that can help private sector employees ensure they have maximum protection at work. These tips are not foolproof ways to protect your job, but they provide some cover in the face of the risks and challenges ahead. Of course, you’re safest keeping your protests outside of work, but building the resistance against Trump will require shop floor leaders to be vocal and visible. While speaking out at work is inherently risky, the rewards measured in collective strength and tangible gains cannot be overestimated.

Step 1: Bring a buddy

The National Labor Relations Act (NLRA), the main law governing relations between workers and employers in the private sector, is unique: It mostly protects groups, not individuals. This means that whenever you stand up to improve the conditions at your workplace with at least one other worker, you are engaging in “protected concerted activity” under the NLRA, and you can’t lawfully be fired or disciplined for that activity. Solidarity at work is protected under federal law. This protection applies to regular workplace complaints and grievances—for instance, joining with your coworkers to form a union or ask for a wage increase—but can also apply to political activity.

Usually, even talking to coworkers about your problems at work is “protected concerted activity.” The National Labor Relations Board (NLRB) recently broadened the meaning of the term in a 2014 case. In that case, the NLRB held that a worker who talked to her coworkers about serving as witnesses in her individual sexual harassment complaint was protected under the NLRA because she was enlisting coworkers in her aid. This suggests that a worker can invoke the protections of the NLRA just by talking with coworkers.

It’s always a good idea to act with at least one other coworker. The best defense is building strong ties with coworkers and the community. The more the boss fears pushback, the less likely he is to retaliate. At the very least, make sure to talk to a coworker before engaging in any action at work, political or otherwise, to bring that action under the NLRA’s protection. But keep in mind that not all political protest is protected—as Step 2 explains.

Step 2: If you’re talking or protesting politics, find ways to tie your protest to issues your employer can control

If you decide to engage in political activity at work, the most important action you can take to protect yourself and your coworkers is to tie your speech or protest to an “employment related concern.” With some limited exceptions, the NLRA protects you from discipline for discussing anything having to do with your pay, occupational safety, the policies at your job, and other terms and conditions of employment with coworkers and third parties, whether the news media or a government agency. In a famous labor law case from 1962, NLRB v. Washington Aluminum, the Supreme Court found that labor law protected a group of workers who spontaneously walked off the job because the shop was too cold to work, though there was a rule against leaving work without the supervisor’s permission and the employees didn’t plan or know they were engaging in a workplace action.

Problems that your employer can’t affect or control are not employment related. For example, in 2006, hundreds of workers were terminated for walking off the job to join massive protests against anti-immigrant legislation proposed in Congress. In response to the terminations, the NLRB came up with some guidelines for political activity. While the protests were found to have been done for “mutual aid and protection”—workers standing together in solidarity—walking off the job against employer rules was unprotected, since the employers could not control immigration policy.

Sometimes an employer does have power over a government policy—for instance, if the employer is actively involved in lobbying over that policy, like in a recent case where taxi drivers protested against their employer, a Las Vegas cab company, for lobbying for more medallions, which would put more drivers on the road and reduce their pay. Still, the takeaway is that you should always try to make sure your protest is about a tangible workplace policy. For instance, if you want to protest the Trump administration’s immigration policies, you could center your protest around a demand that the employer not conduct voluntary I-9 audits.

One last thing to remember is that if an employer has a rule that limits political speech at work, it has to be neutral on its face and neutrally applied. If you are fired for violating an employer attendance policy to attend a rally against Trump’s immigration policies, but another coworker who also violated the attendance policy to attend a Trump rally is unscathed, then the boss has violated the law by failing to apply work rules neutrally and you should contact an attorney or the NLRB to report the violation.

Step 3: Build solidarity at work and in the community

Nothing protects you more than the support and solidarity of your coworkers and community. Collective action is a time-honored and battle-tested tactic. The more people support you, the more the boss will be afraid to retaliate against you. In the Fight for $15 campaign, organizers perfected the art of the “walk back.” After one of their now famous strike days, community members, including clergy and local politicians, would walk striking worker back to fast food restaurants in a show of community power. Build relationships at work and in your community to prepare for the fight ahead. Nothing is stronger than people power.

This article originally appeared at Inthesetimes.com on May 15, 2017. Reprinted with permission.

About the Authors: Leo Gertner is a labor lawyer in Washington, D.C., who previously worked as a grievance representative for janitors in Boston. Sam Wheeler is a Pennsylvania labor lawyer who has previously worked in electoral politics and in the legal departments of several national unions.

Social Media is a Danger Zone for the Healthcare Industry

Thursday, February 2nd, 2017

Social media can cause big problems for healthcare workers and their employers. Because of HIPAA rules and other concerns, posting something as seemingly harmless as a selfie with a patient could ruin careers, or worse. Healthcare professionals do form bonds and friendships with some of their patients and because social media has become a place where people share details of their lives and their friends’ lives, it is understandable that a healthcare worker might slip up and post something that he or she shouldn’t. Understandable, but not excusable.

Blurred Lines

Healthcare workers are advised of HIPAA rules and know that information about their patients is confidential, but that hasn’t stopped some healthcare workers from getting into trouble for their social media posts. For example, when a police officer was brought into an emergency room and the staff was unable to save him, some posted their condolences on Facebook, complete with the name of the deceased officer. To make matters worse, the officer’s family had yet to be notified.

Certainly, the ER staffers were reacting to the heartbreak of losing a patient and doing what felt natural in the moment—sharing thoughts and feelings on social media. They were acting out of kindness.

Intent Doesn’t Matter

A post that is meant to be kind is still not OK. The bottom line is this: sharing any information about a patient is a HIPAA violation even if the social media account has the highest possible privacy settings (which are never 100% reliable), and even if the post is mourning the loss of a patient.

As Ed Bennett, director of Web strategy at University of Maryland Medical System points out, “We already have guidelines; social media is simply another form of communication. It’s no different from e-mail or talking to someone in an elevator. The safe advice is to assume anything you put out on a social media site has the potential to be public.”

What About Free Speech?

A recent social media conduct survey found that 41.2% of Americans believe that getting fired because of a social media post is an infringement of their First Amendment rights. In the private sector, it’s usually not.

The First Amendment affords Americans the right to free speech, which means they can express themselves without interference or constraint by the government. The First Amendment does not protect employees from private sector disciplinary action.

Healthcare professionals can get fired for a post, even one that does not violate HIPAA laws, as a Philadelphia hospital employee learned when she posted a racially-charged rant on social media. Word spread (because social media is not private!), someone started a change.org petition to demand that the hospital fire the employee (for a post that had nothing to do with her job) and the worker was fired.

Headaches All Around

An inappropriate social media post can become a major headache for everyone involved. According to the AMA:

Criminal penalties for a violation of HIPAA are directly applicable to covered entities—including health plans, health care clearinghouses, health care providers who transmit claims in electronic form, and Medicare prescription drug card sponsors. Individuals such as directors, employees, or officers of the covered entity, where the covered entity is not an individual, may also be directly criminally liable under HIPAA in accordance with principles of “corporate criminal liability.”

HIPAA was enacted in 1996 and social media didn’t begin to hit its stride until Facebook opened to the public in 2006. Since employers are liable, and HIPAA doesn’t explicitly address social media, many deem it prudent to have a very clear social media policy. As a healthcare employee, you should be aware of your employer’s policies, which may go above and beyond HIPAA.

Conclusion

The healthcare provider/client relationship is like no other. Healthcare professionals know the most personal details about their patients, and they care about their patients, yet they’re expected to maintain a professional relationship.

According to the US Department of Labor, “Employment of healthcare occupations is projected to grow 19 percent from 2014 to 2024, much faster than the average for all occupations, adding about 2.3 million new jobs. Healthcare occupations will add more jobs than any other group of occupations.” Workers of the future who have grown up with social media and habitually post random moments of their days on Snapchat or Instagram will have to learn to curb that behavior if they intend to get a job in the healthcare field—and keep it.

 

Ellen Gipko is a marketing analyst for white label SEO firm HubShout, and a writer specializing in the topics of social media and digital marketing. She has contributed content to Social Media Today, Search Engine Watch, Search Engine Journal and other industry websites.

Where do we draw the line on political speech in the workplace?

Monday, November 7th, 2016

17547163106_3874c2b4d7_k_2This year’s election has stirred up a lot of controversy, arguably more than the most recent elections. Everyone is talking about the election, whether it is in person or online. Sex, politics, religion, money; these are things we were told not to talk about, especially at work. But now, in this new age of technology, even if we don’t talk about it at the office people can still find out our views if we post online. What rules apply to the workplace and where do we draw the line?

 

Political speech

There seems to be a fine line between what type of political speech is and is not acceptable in the workplace. Federal Law prohibits government employers from restricting free speech in the workplace because of the 1st Amendment. However, private employers do not have the same restriction. In some states, employers may be able to express their political beliefs as long as they are not coercing any employees to vote for or contribute funds to a specific candidate. However, encouraging donations is fine. Other places only allow a company to express its beliefs by expressing its views on which side of each issue is best for the future of the company. Are employees held to the same standard?

What can employees talk about at work? Friends talk about politics outside of work, but what if you are friends with your coworkers? Some employees may be fine with talking about politics with each other. However, if these conversations happen at work where other employees can hear them, they might be offending someone. Employers can regulate as they see fit through their own workplace policies but there aren’t any laws governing this. Some might think offensive political speech would amount to a hostile working environment. However, federal and state laws do not consider political speech as a basis to prove a workplace is hostile. Should employees be able to talk about politics that deal with workers rights, like health care, minimum wage laws, and working conditions? Do employers have the right to restrict this type of speech through their policies? And what happens when someone’s views differs than the boss’s?

Retaliation and discrimination

There are only a few states with laws prohibiting retaliation against employees for their political beliefs. Employees may be fired or passed up for promotions just for having opposing political beliefs from their boss. Even if an employee doesn’t talk about their beliefs at work, an employer can use what they find on the Internet against you. If you post political speech on Facebook, Twitter, Instagram, or any other form of social media, your employer can find out about it. But what about your coworkers, can they discriminate against you?

A recent article talked about coworkers using political speech to harass a Hispanic woman. They changed her computer screensaver to pictures of Trump. They also told her to go back to Mexico and called her an illegal immigrant, even though she was born in America. This woman was eventually fired and told, “Illegal immigrants can’t vote or work. Good luck finding a job.” Is this political speech enough to consider the workplace hostile, even though the law doesn’t recognize this as a basis for discrimination? This woman and her lawyers are not taking that chance. They are filing a lawsuit against the company for racial discrimination, which is actually recognized by federal and state law. How do we stop these things from happening when race becomes such a major topic in political debates?

Solutions

If political speech is so controversial, why not ban it from the workplace? Do we ban all of it or just what may cause employees to feel uncomfortable? Many private companies have their own regulations, but how do they efficiently regulate it? Employees donate money and time to political campaigns, post to social media, and vote outside of work on their own time. Now that we can access technology anywhere, should employers ban political speech online during work hours? Should certain websites be blocked or monitored?

What about voting privileges? Most states require employers to allow employees to take time off work to vote. Some states are stricter than others by restricting how much time can be taken off work, the amount of notice required, or by including exceptions, but employers must comply. If they have to let employees vote during work hours, can they really regulate anything else they do during this time?

For more information about voting rights in each state visit WorkplaceFairness.org.

Angelic Papacalos is a law student at American University Washington College of Law and an intern for Workplace Fairness.

Tackling Political Speech in the Workplace: What We Can Learn from Chris Kluwe

Monday, February 24th, 2014

nicolasChris Kluwe was back in the headlines this week for his public support of Michael Sam, a top NFL draft prospect, who announced on Sunday that he is gay.  Chris Kluwe, a former punter with the Minnesota Vikings, claimed earlier this year that he was released from the team for his public support of gay marriage.

As high profile athletes, Kluwe and Sam command the attention of the media and the electorate when they speak up on important societal issues. Michael Sam has indicated that he will not engage in activism in support of gay rights and will choose instead to focus on his fledgling NFL career.

While I do not know him nor pretend to know his motives, I can’t help but think: is the fear of losing out on a high draft pick or not being signed by an NFL team driving his decision not to engage in political activity outside the locker room?  Losing a job should not be a concern that employees have when considering whether to engage in political activities outside the workplace.   Which brings us back to Kluwe’s situation and the question of whether the Vikings had the right to terminate him, assuming his allegations are true, for voicing his political views on gay rights?

With politics a part of daily life, it is only natural that the world of work and politics will collide.   Unfortunately, it is not uncommon for employees to be terminated when the political opinions within these worlds also collide.  Recently, Dick Metcalf, a well known gun journalist, was fired from his job writing for Guns & Ammo magazine after he wrote a column calling into question the absolute right to bear arms.

And take the recent case of Maria Conchita Alonso, a Latin-American actress, who was to participate in a Spanish language version production of “The Vagina Monologues.”  After voicing her support for a Republican California gubernatorial candidate, Tim Donnelly, she was met with fierce protest and basically forced to resign from the production.

The difficulty lies in how to draw the boundaries around protected speech so that the political beliefs and activities of both the employee and the employer are respected.  Employers will argue their own right to political expression and that they should be able to regulate disruptive political activity in the workplace.  However, employers should not have the power to make employment decisions solely based on the political activities outside the workplace.  An employee should simply be able to take a personal stand on political issues (rightly or wrongly) without fear of retribution.

Like Chris Kluwe, most workers who engage in political activity do so on their own time and outside of the workplace.  But without any statutory protection, employers are able to misuse their economic power to influence the political activities of their employees no matter where those activities take place.

Now, if Chris Kluwe played for the Raiders, 49ers or Chargers — all based in California — his right to political speech would be protected.  Two statutes (sections 1101 and 1102 of the California Labor Code) make it unlawful for private employers to retaliate against employees because of their political affiliations or political activities.  California seems to be one of the very few states that protects employees from retaliation for engaging in political discourse outside of work or while at work.

So where does our punter, Mr. Kluwe, stand?  As a result of his allegations, the Vikings are now investigating his claims and have interviewed Mr. Kluwe about his allegations.  However, there is no guarantee that the team will corroborate what he alleges.  And because he does not live in California, there is also no guarantee that the Vikings will remedy any wrongdoing.  While I hope that the Vikings will do the right thing, the natural tendency is for large employers and institutions to close ranks and do nothing to change.  We’ll see soon enough whether the Vikings decide to punt the issue or tackle the issue head on.

This article was originally printed on CELA Voice on February 13, 2014.  Reprinted with permission.

About the Author: Nicolas Orihuela is a founding partner of the employment law firm of Hurwitz, Orihuela & Hayes, LLP and has been practicing since 2002. He represents employees in race discrimination, sex harassment, wrongful termination and disability discrimination related cases. He also handles wage and hour cases. Mr. Orihuela is a member of the California Employment Lawyers Association and the Consumer Attorneys Association of Los Angeles, which are organizations dedicated to protecting the rights of employees and consumers. He is a graduate of Loyola Law School and Loyola Marymount University. While at Loyola Law School he served as a Staff Writer and Articles Editor of the Loyola of Angeles Law Review. Prior to founding Hurwitz, Orihuela & Hayes, LLP in 2007, he worked at Lim, Ruger & Kim, LLP where he handled employment matters, including wage and hour class actions, on behalf of employees.

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