Given the current state of affairs in this country and the upcoming 2024 presidential election, there is no short supply of hot button issues that may come up in conversation in the workplace. Indeed, beyond the physical workplace, public statements made on social media and other platforms, even in an employee's purely personal capacity, can easily spill over to become a workplace issue. For all employers, but particularly those with a mission rooted in a specific social cause, managing conflicts between an employee's personal beliefs and the mission or values of the organization can feel much like a balancing act, especially where an employee is very outspoken on a particular issue, or the issue is one that is poised to inflame passionate responses from persons with differing viewpoints. Using a hypothetical example below, we have outlined a handful of strategies to help employers navigate the complexities of having an employee whose personal beliefs do not align with the mission of their organization.
A Hypothetical Organization and Employee
For purposes of this discussion, let's say that we have a private organization whose mission is fighting climate change ("Organization A"). To further its mission, Organization A pursues educational efforts as well as lobbying efforts to engage government leaders at the local, state, and federal levels to direct greater resources toward climate change initiatives. Organization A needs to hire a new director and has received applications from many promising candidates submitted to its job posting online. Unbeknownst to Organization A, one such candidate believes that climate change is a hoax ("Candidate B"). However, Candidate B has a strong educational background, years of experience with lobbying, and interviews well, and is ultimately selected for the role.
During their first few months with Organization A, Candidate B has exemplary performance, though it is soon discovered, after donors to Organization A complain, that Candidate B is posting about their belief that climate change is a hoax and sharing articles related to that belief on their personal social media accounts outside of work hours. What can Organization A do now?
Recruiting Practices to Find Mission-Driven Employees
Although Organization A has already hired Candidate B, at the front end, it could have avoided the predicament it now faces altogether by implementing key recruiting and hiring practices to find applicants who are passionate about its mission. For example, rather than merely posting the director role and accepting applications online, Organization A could have adopted a referral program through which current mission-driven employees recommended potential applicants for the director role. A referral program under which current employees receive some small benefit or bonus if an employee they recommend is hired and remains with the organization for a defined period of time could have better targeted prospective employees aligned with Organization A's mission and objectives.
Aside from this recruiting tool, during the interview process, Organization A could have included a set of questions for interviewers to ask each candidate specifically about its mission. For instance, beyond the standard question, "Why do you want to work here?" Organization A could have tasked all interviewers with asking mission-forward questions, like "What does our mission mean to you?" or "What about our mission statement appeals to you?" which would have helped Organization A decide between the multiple highly qualified applicants who actually had the strongest ties to its overall mission and objectives.
That said, while Organization A could have better utilized its recruiting and hiring processes to locate candidates aligned with its mission, it would still need to ensure that it was engaging in hiring practices consistent with applicable federal, state, and local employment discrimination laws and avoid including questions during the interview process targeted at protected characteristics under those laws. For instance, although likely not implicated by Organization A's mission, such laws prohibit making hiring decisions based on protected characteristics, such as national origin, religion, and political affiliation, which could be related to other organizations' missions.
Taking Action Related to Off-Duty Conduct and Speech
While evaluating recruiting and hiring practices is helpful for Organization A moving forward, it does not solve the current problem of Candidate B's off-duty conduct of posting statements and articles online. As a general rule, private employers have a fair amount of discretion when determining if an employee's off-duty conduct, including speech, warrants taking disciplinary action, up to and including termination. This is particularly true if the conduct poses a conflict of interest because it negatively impacts the employer's legitimate business interests or is unlawful. In the present example, while Candidate B has not engaged in any unlawful conduct, Organization A may be able to show that the conduct negatively impacts its legitimate business interests because it has received complaints from donors about the conduct at issue.
However, before taking action against Candidate B for their off-duty conduct and speech, Organization A should conduct its own investigation of the matter to confirm that the conduct complained of is as it was depicted by the complainants. Additionally, Organization A should consult applicable state and local laws for any limits on its ability to act if it determines some form of action is warranted after investigation. For example, a handful of states, like California, Colorado, and New York, limit an employer's ability to terminate an employee for lawful off-duty conduct under certain circumstances. Also, as noted above, some state and local employment discrimination laws may play a factor in the ultimate actions that the employer can take because of the different protected characteristics covered.
Finally, whenever an employment action is contemplated, an employer should consider issues with consistency of enforcement. Here, Organization A should think through the reason why certain off-duty conduct or speech, like that by Candidate A, may be treated differently from other off-duty conduct or speech, like a different employee's social media posts praising climate change initiatives. Before taking different actions with different employees, it should have a legitimate, non-discriminatory reason for any such differential treatment.
Employment Policies and Procedures Related to Off-Duty Conduct and Speech
To ensure that employees like Candidate B are aware that their off-duty conduct and speech may result in disciplinary action when warranted, Organization A should ensure that certain policies, like its Social Media Policy, reference this possibility. For instance, while Organization A cannot prohibit employees from posting about their work or related topics on their personal social media accounts altogether, it can remind employees that actions taken on social media that adversely impact the employee's job performance, fellow employees, or Organization A's legitimate business interests may result in disciplinary action. Short of disciplinary action, Organization A can also require employees to put a prominent disclaimer on any posts made related to the employee's work that the views expressed are the employees' only and do not reflect the views of their employer.
Organization A should ensure that any policies restricting off-duty conduct, and speech in particular, are not being used to restrict an employee's right to discuss the terms and conditions of their employment in accordance with the National Labor Relations Act (NLRA). When drafting these policies, Organization A should specifically include a disclaimer acknowledging that the policies are not intended to restrict employee disclosure rights under the NLRA. Having policies and procedures in place that reference off-duty conduct and speech allows employers and employees to be on the same page when navigating any issues that arise.
Employers with questions regarding employee speech or any of the employment policies or procedures referenced here are invited to contact the authors of this article or any other attorney in Venable's Labor and Employment Group.