Does Your Company Have an Employee Activist Policy?

As a way to create social change and right injustices, activism has been a part of human culture throughout human history. Indeed, activism has been at the heart of social change for centuries.

Proverbs 31:8-9 (NIV) of the Bible says, “Speak up for those who cannot speak for themselves, for the rights of all who are destitute. Speak up and judge fairly; defend the rights of the poor and needy.”

History is replete with examples of activist campaigns, uprisings and even full-throated revolutions that have toppled governments and transformed human society, as well as those that may have raised awareness of oppression but ultimately failed in their objectives.

The protests sparked after the killing of the unarmed Black man, George Floyd, in May 2020 are the latest iteration of activist movements that stretch back through the eons, from the Black Lives Matter movement to the Women’s March launched in 2017, the 995 Million Man March, the disability rights movement of the 1980s, LGBT equality marches, the civil rights movement of the 1950s and 1960s, the decades-long fight for women’s suffrage, the abolitionist movement of the 19^th century, even to the 1789 Storming of the Bastille, the Protestant Reformation of the 16^th century, all the way back to the Athenian Revolution of 508 BC and beyond.

A Short History of Activism by the National Women’s History Museum, notes that these protests and movements “are just a few examples of struggles throughout history that represent the human need to make their own choices, to be free from oppression in all forms as well as to be given a voice.”

But when it comes to the world of commerce, how do businesses approach social and activist movements? How should businesses handle activists within their own ranks? These are questions many business leaders are asking themselves today, and with good reason; employee activism – protest and criticism aimed at an employee’s own company – is on the rise. Fortunately, resources are available to guide leaders as they develop policies on employee activism.

Is Employee Activism on the Rise?

An activist is one who actively addresses an issue by challenging those in power. As such, an employee of a company could be an activist for gender parity, racial justice, disability rights, LGBTQ rights, animal rights, climate change or any other number of causes and movements. The term “employee activism,” however, is reserved specifically for those activists who speak out and protest against their own company over policies or operations that they feel contribute to social issues.

For example, employees of leading management consultancy McKinsey & Company pressured the company to stop working with U.S. Immigration and Customs Enforcement (ICE) in July 2018, after a New York Times investigation disclosed that the firm had done more than $20 million in work for the agency. In September 2019, Walmart said it would stop selling handgun ammunition and some assault-style rifles a month after some of its employees staged a walkout and a moment of silence to protest the sale of guns in the company’s stores.

These are not isolated incidents. Employee activism is on the rise, according to the 2019 report Employee Activism in the Age of Purpose: Employees (UP)Rising by Weber Shandwick, United Minds and KRC Research. The report found that nearly four in 10 employees (38%) say they have spoken out to support or criticize their employers’ actions over a social issue. Millennials are the generation most likely to be employee activists (48%), higher than Gen Xers (33%) and nearly twice as likely as Boomers (27%).

“Many employees want to do meaningful work and they want their employer to either support or align with their values and identities,” writes human resources expert Rod Githens in an article for the Society for Human Resource Management (SHRM). “When that doesn’t happen, employees generally have three choices: leave the organization, try to bring change within the organization, or just shut up and deal with it. The last option is probably the worst for the organization because it leads to lowered employee engagement.”

So how should employers handle employee activism?

Most human resource professionals advise thinking through the company’s stance and then codifying it in an employee activist policy.

What is an employee activist policy?

An employee activist policy gives permission to or prohibits employees from speaking publicly in opposition to their employer and/or in speaking up for change. Drafting an effective employee activist policy, though, requires thinking through and weighing many factors.

Are employee activist policies permissible under the First Amendment?

Public and private companies have different ownership structures and must abide by different rules. Public companies are owned collectively by shareholders who have purchased stock in the company. Private companies are owned by private individuals or groups, whether wholly or through private stock.

By their nature, public companies are held up to a higher degree of public scrutiny. They must make annual reports and financial statements public, and the actions of their executives and board members are closely scrutinized.

When it comes to employee activism, public and private employers also must handle speech in the workplace differently.

In a presentation on Employee Speech: Politics, Social Media, and Employer Rights, attorneys Stephanie Romeo and Daniel Krawiec of Clark Hill advised that:

Public employees have a right to free speech, including free political speech, in the workplace;
Private employers may prohibit political speech, discussions, and conduct at the workplace; and
Private employers may generally refuse to hire, adjust pay/benefits, and discharge “at will” employees because of their political views, with some exceptions.

The Clark Hill attorneys further noted that employer best practices should include:

Creating carve-outs for communications and activities protected by Section 7 of the National Labor Relations Act (NLRA) or acceptable state laws where policies include “no political activity.”
Ensuring that policies comply with the National Labor Relation Board’s rules on permissible restrictions.
Defining procedures for promptly addressing violations of policy or violent, disruptive, or unlawful conduct related to politics.
Enforcing policies consistently without regard to political party.

Consistent enforcement is one area where employers may stumble, said Philadelphia labor and employment attorney Amy Rosenberger in an article in The Philadelphia Tribune. Rosenberger, of the law firm Willig, Williams & Davidson, noted that the First Amendment regulates government actions around free speech but not those of private employers, but said that employers must enforce their policies equally. In cases where employees who have spoken out on certain issues have been treated differently than other employees who have spoken out on different issues, employers can leave themselves open to allegations of discrimination, she said.

Here are some specific questions that employers often have regarding employee activists.

Can an employee be disciplined or fired for attending a protest?

In most states, it is permissible to discipline or dismiss an employee for attending a protest. While such consequences may be permissible, however, the more important question is whether such action would be wise, well-thought-out, or beneficial to the employer in the long run.

In evaluating an employee’s attendance at a protest, a private company must determine whether the employee’s actions violate any of the organization’s policies. For example, if the company has a no tolerance policy against discrimination, an employee who attended a rally of white supremacists likely would be violating that policy and could be subject to discipline or dismissal.

Can an employee be disciplined or fired for wearing descriptive activist attire to work?

Many employers require their employees to wear a uniform or dress according to an accepted code. Dress codes are, for the most part, legal as long as they are not discriminatory. Employers, therefore, can set their own codes about what is and is not acceptable attire in the workplace.

Again, however, just because you can doesn’t mean you should, particularly if your company culture or brand embraces tolerance and openness. Actions that seem to fly in the face of a company’s stated values or beliefs likely will attract noticeable public scrutiny, as Taco Bell did in June 2020.

On June 8, a Taco Bell employee in Ohio posted a video to Facebook saying that he was fired for wearing a Black Lives Matter mask to work. Fortune reported that a spokesperson for Taco Bell later confirmed that workers were free to wear Black Lives Matter masks and that corporate leaders would clarify the mask policy to avoid a repeat of the incident. Fortune noted that the incident was “embarrassing for the company coming soon after Taco Bell CEO Mark King published an open letter addressing the killing of George Floyd in which he said he and Taco Bell would work to fight racism.”

Can an employee be disciplined or fired for political speech at work?

Just as employers can dictate what employees wear to work, they also can regulate what employees say in the workplace.

“Contrary to popular belief, there is no right to ‘free speech’ in private workplaces under the U.S. Constitution. To paraphrase former Supreme Court Chief Justice Oliver Wendell Holmes, Jr., an employee may have a constitutional right to talk politics, but he has no constitutional right to be employed,” writes employment lawyers Jim Reidy and Madeline Hutchings in an article for HR Daily Advisor. “Even the First Amendment doesn’t protect political speech at work. Employers generally have the authority to control how employees express themselves on the job, and may discipline and terminate those who act unprofessionally or create disturbances—even if the expression is political in nature.”

In August 2019, Google updated its employee guidelines to caution against political debate at work and improper public disclosure of company information. “While sharing information and ideas with colleagues helps build community, disrupting the workday to have a raging debate over politics or the latest news story does not,” the company’s policy reads. “Our primary responsibility is to do the work we’ve each been hired to do, not to spend working time on debates about non-work topics. Avoid conversations that are disruptive to the workplace or otherwise violate Google’s workplace policies. Managers are expected to address discussions that violate those rules.”

In a response to criticism over the policy changes, a Google representative said, “Our intent is not to chill internal speech or limit Googlers voicing concerns. We want Googlers to speak up when they feel something isn’t right and we provide ample ways for Googlers to use their voice to promote change.”

Can an employee be disciplined or fired for posting something on social media in opposition to their company’s position on an issue?

The Guardian recently reported that Amazon threatened to fire employees for speaking out on climate change. After a group of employees called for stronger climate action by the company, the employees were informed that they risked dismissal.

“Amazon employees said the company updated its policy on staff speaking to the press and on social media in early September, a day after the plan to join the climate walkout was announced. The new policy requires staff members to seek permission from Amazon prior to talking in a public forum while identified as an employee.”

Whether an employee can be disciplined or fired for posting something on social media in opposition to their company’s position on an issue depends on various factors, including:

Where is the company located?
Where is the employee located?
What exactly is the content of the social media post?
Is the company public or private (and does that matter under the state laws)?
Which state’s laws apply to the conduct?
Does the state provide a constitutional right to privacy for private and public sector employees (such as California)?

For example, San Diego attorney Dan Eaton said in an article in The San Diego Union-Tribune, “An at-will employee is at greatest risk of losing his job without legal recourse where he sends an offensive, legally unprotected message through his employer’s electronic communications system during working hours.”

The article goes on to say, “It is where the employer terminates an employee for posting comments on the employee’s personal social media account on his own time on a matter unrelated to work or co-workers that the employer faces greatest legal risk” because, as is the case in California, employers are prohibited from punishing employees for engaging in lawful off-duty conduct.

How can your company support employee activism within its corporate policies?

Leaders of businesses both public and private are going to have to face the rising tide of employee activism, whether today or in the near future. Instead of fearing activist employees, companies may welcome their passion and engagement. How? By:

Cultivating a culture of collaboration, transparency, and openness
Embracing activism as a positive force to create change
Addressing the needs of the employee and other like-minded individuals in the company
Clearly communicating their corporate culture, purpose, values, and position
Identifying ways to support the employee even if the company cannot take a stand on the issue
Establishing protocols to address differing opinions
Collaboratively sharing resources on the subject
Requiring employees to make it clear that the beliefs are their own and not associated with or attributed to their employer

Businesses that find ways to have these sometimes-difficult conversations will benefit in the long run.

“When you think about how much energy and courage it takes for employees to speak out and act, there is a force for good that can benefit every business,” writes consultant Pendragon Stuart in an article for HRZone. “The prize for HR is to channel that energy, courage and conviction so that it improves performance, engagement and retention. This can only happen if employees are confident that their values are respected and they feel part of the change they want to see.”

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RELATED ARTICLE: When and How Employers Should Respond to Employee Activism by Arlene S. Hirsch on behalf of SHRM quotes Gina Rubel. For members of SHRM, click here. Nonmembers can read the full article on Arlene Hirsch’s website.