Law Talk with the Flock

Freedom of Speech vs. Cancel Culture? Constitutional Rights and Your Business

March 22, 2021 Jeana Goosmann Season 2 Episode 6
Law Talk with the Flock
Freedom of Speech vs. Cancel Culture? Constitutional Rights and Your Business
Show Notes Transcript

In this  Legal Landmine episode CEO Jeana Goosmann discusses the hot topic of what many call “Cancel Culture” and what an employer can do when their employee likes, shares or says something controversial on social media.  Talking points include:

-Does First Amendment grant employees freedom of speech at their workplace?
-How does ‘Cancel Culture’ relate to the National Labor Relations Act?
- States that have enacted social media laws for employees
-Why employers should create social media policies

Read our blog on this topic here.

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Goosmann Law Firm :

Do complex legal issues hold you back? Let's get energized and bring clarity to your top legal questions. This is Law Talk with the Flock by Goosmann Law Firm.

Jeana Goosmann :

Hello, I'm your host, Jeana Goosmann, CEO, lawyer, author, and woman business owner here to help navigate you through the law, your business and life as a leader. And for full disclosure today, I am podcasting from home. I, we are in quarantine at the moment. And so if you hear some children, I am also a mother and they are upstairs supposedly doing their math, but let's get going today and have a topic that is a little controversial and it can be tough to tackle. And that is legal landmines surrounding what many call cancel culture in our pop culture today. And I want to discuss what employers can do when their employees likes shares, or they say something controversial and social media. And how is this cancel culture being applied to employers? It is a big deal and we're hearing a lot about, um, are there insensitive comments? Are there things that shouldn't be posted anymore? And what do you do if one of your employees is causing you trouble out there on social media? I think, we have seen a definite uptick i n issues arising for our employer clients. And we're getting a lot more calls t oo from employees, looking for legal advice related to what about my freedom of speech? And can't I say anything I want at any place point in time, because I'm protected with the freedom of speech. Now, the thing that a lot of folks don't realize is that your constitutional right to freedom of speech, it doesn't apply everywhere just because you're an American citizen in every circumstance. And it really is more limited than people think. And so with regard to your employment, freedom of speech does not protect you with regard to your employment, wholly. And I think that's a shock to a lot of employees to know. And also for employers. II I think a lot of employers are scared to let their employees know that, you know, you can't say that while you're at work, now, there are a lot of caveats b ecause this is the law and the law is not always black and white and crystal clear, right? And wrong, all that good stuff. U m, as much as we would like it to be. And so I can give you some examples. So the freedom of speech can become an issue if we're dealing with the national labor relations act. So employers have to consider if t he speech that they're seeking punish or to tell people that they can't say those sorts of things while they're representing the employer. U m, if it's related to the terms and conditions of employment, then the national labor relations act can come into effect. Okay, what in the heck does that mean? So employees can become protected under the national labor relations act. Um, if they're talking about things like their pay or their benefits or their working conditions, and if some of those activities or things that they're talking about could, could be considered protected concerted activity. So, this relates back to the employee's rights to form a union, for example, and to try and protect themselves and form a collective bargaining agreement with their employer. Now, there's been a lot of law in this area and there's the newly applied wright line approach, not right, like R I G H T, but wright. W R I G H T line approach. And that came out of some case law in this last year, in which we're looking to see if the protective activity was the motivating factor in the discipline. And there's kind of been a shift in a clarification of the burden and the circumstances of what employees have to prove and what employers have to prove, in these different circumstances. So I can just tell you that if you're an employer and you're not sure this is a great place to seek some legal advice, because it's a changing landscape and we want to make sure that you're up to date on what has been decided both on the national scale with things like the National Labor Relations Act, but then also within your particular state. And as an attorney, I can say as well that we have employees in lots of different states these days, um, with remote working. And, uh, that's always an issue that we have to tackle too is okay, what state law is going to apply in this circumstance? Because perhaps the employer is in New York and the employee is sitting in Iowa. Okay, well, what law is going to apply it in that circumstance? And, so we often tend to go to, seeing what both states law is. And then if there is a differential between the two, trying to figure out, how are we going to navigate both those laws? Because we don't have a national standard for all issues that come to employment. And one example would be in this area or state employee privacy laws, some states have enacted different privacy laws for employees, for example, there's some specific legislation on the ability of employers to control employees, social media, and different states. In fact, there are 16 states, I believe that have enacted these different laws. So Nebraska, for example, which is one of the states, the Goosmann Law Firm practices and prohibits employer from requiring or requesting an applicant or employee to provide their social media log and information, uh, requiring a, requesting an applicant or employee to log into their accounts in the presence of the employer, requiring an applicant or employee to add any contact to their network, including the employer, or taking adverse action against the applicant or employee related to those enumerated items. So if they wouldn't log in, in front of you, for example, in a job interview, so you can't totally police and say, you have to friend me as your employer in Nebraska. So you can monitor what they're doing on social media when they're not at work. And 15 other states besides Nebraska have enacted statutes, which can apply to employers. Now, I don't know that you want to if you're the employer friend, you're a employee or not, it's not what this is saying, but you can't force them to take you on as their friend which is just a funny statement, but 20 years ago, it wouldn't have made any sense whatsoever. So keeping in mind those different laws, and then there's also lawful activities, statutes that have been enacted in a handful of states. Again, not all every state does this apply, but a handful of states have passed laws, protecting employees from discipline, for engaging in any lawful activity outside of work. And while these laws are most commonly applied to, for example, the use of marijuana or an employee's criminal history, the, the broad language has been used to provide protection to employees, social media activity and some states and employers should therefore be sure to make sure that they're up to date on the state legislation on these different topics. Now, at the same time, I think it's important for an employer to have a social media policy because you want to make sure that you have put in writing that your employees are not free to comment on behalf of the company. And if they're going to comment, and use your company name, they need to make sure that it's not, uh, portrayed as a comment on behalf of the company. So if I am on LinkedIn as a, the CEO of Goosmann Law Firm, and I make a statement, um, I need to make sure that as a CEO, that statement is appropriate for the Goosmann Law Firm CEO to be making otherwise there could be ramifications, right, and ramifications back to the Goosmann Law Firm. And if on the other hand, I am an employee of a hundred thousand person company. And I say that I represent the company and making this statement, and that's not true. I think the employer has plenty of grounds to come back and say, you can't be making statements like that and terminate or punish the employee for making such a statement on behalf of the company when it's really not. And also you want to make sure you're protecting your trade secrets and your confidentiality in your policy with your employees on social media. So if an employee goes and puts the secret sauce out there on social media and you clearly have things to protect those trade secrets and the secret sauce, it's marked secret sauce confidential within the company. Everybody knows that that pizza sauce is secret and that's part of what makes your pizza place so valuable. And then they go and post that in social media. That too is something that you could take action on. So it doesn't mean that you can't control some things, but in other ways, you certainly can't prohibit them from saying whatever the heck they want on social media, um, which has become such a hot button. Now, I think, because this is such a hot button, I have some general advice for people, and I think it's important that you take this to heart because realizing that words matter and what you say matters, and if you're going to post it out there for the world to see the odds are somebody might screenshot that, and it can definitely come back to bite you in different ways. So you have to be very careful in our culture today of what you say and how you say it. And if you're going to take a stand on something, just recognize that there can be ramifications for that. It doesn't mean that you don't exercise your free speech and your private time, and go ahead and take a stand because that's important. And that's how change matters and how we come about with change. But I think just thinking through the consequences before you go ahead and comment on something, and before you go ahead and hit the like on something because it does portray your image and your personal brand and, and how do you want to be viewed by folks? And just recognizing that, you know, if you go ahead and you take a stance on something and people don't like it, you could lose clients. Um, you could lose business opportunities because of what you posted on your social media and that, that might be okay with you, but just recognizing that whatever you're putting out there, it does have an impact on your personal brand. And it is something to be aware of and certainly keep it clean. Right. Make sure that you're being polite and respectful and the golden rule, I think still applies when you're on social media. And, if you're using those as your guide posts and just the way you live your life, make sure you continue that on social media. And, go ahead and post away with, with that in mind now, there's one other piece I think post away doesn't necessarily apply while you're at work or while you're on working hours. Companies usually are free to say that, um, they can have a strict, no personal use of policy of social media while you're at work. So you gotta lock your phone up while you're there and unless you're on break and then maybe that's a different story. And other companies on the other hand, they want their employees, posting and promoting their brand and making sure that they are visible. And that might even be part of your job if you're a marketing, for example, that you are supposed to be posting on behalf of the company. So there are lots of different scenarios. There's no one bright line rule, but I can guarantee you that this is super hot topic and something that we are being asked to give legal advice on in many different circumstances. And I think as an employer, you should make sure that your company policies are current with today's times and even a social media policy that you had probably four years ago is something that needs to be updated and looked at on today because there have been changes and I foresee more changes to come on the state level and perhaps even at the national level, as we continue to look into these topics. So with that, I hope I didn't confuse you too much, and I hope you all go have a great day and make it worth it.

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