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Black Lives Matter, My Body My Choice, Make America Great Again: The Thorny Path Of Navigating Political Speech At Work – Employee Rights/ Labour Relations



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One need only watch cable television or visit social network
sites to understand how deeply divided our country is along social,
religious, and economic lines. As the 2022 mid-term elections
approach, now is a good time to revisit policies regarding
political speech in the workplace. A case involving a flight
attendant for Delta airlines highlights some of the challenges
employers face.

Delta airlines was sued last month by a Black flight attendant
who claims that she was fired after posting a cartoon to Facebook
showing then-President Donald Trump wearing a Ku Klux Klan hood.
Delta asserted that the post violated its policy against
“disrespectful, hateful, or discriminatory [social media]
posts.” The flight attendant claimed that the cartoon was
simply an expression of her personal political sentiments.
Importantly, she alleges that White employees posted similar social
media content but were not fired.

In an interesting twist, the flight attendant claimed that Delta
airlines discovered her social media post after she herself had
complained about another flight attendant who posted content on
social media that had “racial implications,” and which
offended the Black flight attendant. After the flight attendant
whom the Black flight attendant complained about was terminated,
that terminated flight attendant forwarded the Black flight
attendant’s social media posts regarding former President Trump
to Delta’s human resources department.

Many employees of private companies falsely believe that they
have a “constitutionally protected” right to political
speech in the workplace. The right of free speech guaranteed under
the Constitution applies to government actors. It does not apply to
private (non-government) employers. Employees of private employers
do not enjoy a Constitutional right to engage in political speech
free from interference by their employer.

That does not mean, however, that such employees have no legal
rights. Under Utah law, a private employer may not terminate or
discipline employees for their “lawful expression or
expressive activity outside of the workplace regarding the
person’s religious, political, or personal convictions,
including convictions about marriage, family, or sexuality, unless
the expression or expressive activity is in direct conflict with
the essential business-related interests of the employer.”
Thus, Utah employers may not take disciplinary action against an
employee for posting political content on the employee’s own
social media account, unless the post is in direct conflict with
the employer’s business objectives. That is a high standard to
meet.

As for speech in the workplace, Utah law states that employees
have the right to “express the employee’s religious or
moral beliefs and commitments in the workplace in a reasonable,
non-disruptive, and non-harassing way on equal terms with similar
types of expression of beliefs or commitments allowed by the
employer in the workplace, unless the expression is in direct
conflict with the essential business-related interest of the
employer.” Again, showing that the expression is in direct
conflict with the business interests of the employer is a tall
order.

Some employers in responding to these issues, have created
policies outright prohibiting political (and similar types of)
speech in the workplace. That is allowed under Utah law. Others,
recognizing that political speech in the workplace is likely
inevitable, have set parameters around such speech, restricting the
tone, time or place of such communications. That is also allowed
under Utah law, within the parameters outlined above (that
political speech be treated similarly as other types of speech not
directly related to work). In crafting such a policy, employers
must ensure that they do not restrict an employee’s right to
discuss the terms and conditions of employment; such a restriction
violates federal law.

As the recent Delta case demonstrates, regulating speech in the
workplace is an area fraught with potential land mines. Employers
should contact their legal counsel to analyze existing policies or
to craft new policies regarding political, religious, and related
speech by employees in the workplace.

Originally Published by Utah Business

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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