Workers’ political activism a catch-22 for employers
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Black Lives Matter
John van der Luit-Drummond is editor-in-chief of International Employment Lawyer

Workers at Whole Foods Markets are appealing a federal court decision that dismissed discrimination claims brought against the supermarket chain and its parent company Amazon which, the employees’ allege, violated workplace civil rights protections. It is the latest action brought by employees around the world who feel they have been discriminated against for their political or social beliefs.

In February, Massachusetts US District Judge Allison D Burroughs said the grocer’s decision to send home, dock pay from, and terminate some employees for wearing Black Lives Matter face masks to work did not contravene the Civil Rights Act.

In another example, computer programmer Leah Snyder is suing her former employer for $10m, alleging wrongful termination after posting photos of herself at the US Capitol on 6 January 2021. Snyder, who claims she did not participate in or observe rioting, says her termination by Alight Solutions for political activity violated sections 1101 and 1102 of California’s labour code.

Elsewhere, Canadian ice hockey team the Vancouver Canucks fired its national anthem singer, Mark Donnelly, in December 2020 after it was announced he planned to sing “O Canada” at an anti-mask protest rally organised by covid-19 deniers. And, in 2019, Cathay Pacific staff were warned they risked being fired by taking part in pro-democracy protests in Hong Kong, with 26 employees later claiming the airline sacked them in a political purge.

As politics becomes more polarising, employment lawyers are certainly noticing an uptick in organised employee activism on either end of the political and social spectrum.

“In the ‘hashtag era’, workers are willing to voice their opinions about a whole range of topics, and have the platforms available to do so through social media. They are able to mobilise and be vocal quickly, and effectively,” says Melbourne-based Natalie Gaspar, a partner in Herbert Smith Freehills’ employment, pensions, and incentives team.

“Exploring the future of work, we recently published research which suggested that the challenge for employers is that the triggers for activism are now much broader than the traditional domain of the employment relationship, such as pay and working conditions. Increasingly employees are vocal about a range of issues including environmental impact, ethical sourcing, equality, and a range of social issues.”

Unsurprisingly, a worker’s political views can misalign with their employer’s values, adds Gaspar, and it is here where disciplinary issues increasingly arise. “Its origins in Australia can perhaps be traced to the same-sex marriage debate in 2016 and 2017,” she explains. “For the first time, many large Australian companies publicly announced their corporate position in favour of legalising same-sex marriage. Many employees espoused opinions to the contrary. Since then, the tension in the law between freedom of political belief and a company’s adherence to its values continues to cause friction.”

Workforce activism can risk company reputation. Reputation impacts consumer choice. Consumer choice impacts shareholder confidence

Unlike other jurisdictions, it is unlawful in Australia to terminate a worker’s employment on the grounds of political activity, continues Gaspar. A more nuanced and difficult question, however, is what happens when the employee’s political beliefs directly conflict with an employer’s lawful and reasonable directions.

“Take, for example, an employee of a pharmaceutical company that publicly and vocally opposed covid-19 vaccinations on the basis of [a] political belief,” she says. “The employee’s actions will likely be inconsistent with the company’s values, code of conduct, and social media policy.

“The law in Australia is unsettled on which takes precedence. Whether the employee can be dismissed for misconduct, or whether that would amount to unlawful discrimination on the basis of [a] political belief are the type of questions we can reasonably expect courts to pronounce on.”

Employee activism can manifest in several ways beyond the obvious litigation an aggrieved worker may bring challenging the disciplinary actions of their employer. “Workforce activism can risk company reputation,” says Gaspar. “Reputation impacts consumer choice. Consumer choice impacts shareholder confidence. Unsurprisingly, Australian executives recognise that employee activism on a range of social issues is an area of significant risk.”

“There are dangers in both directions here, with reputational risks for taking disciplinary action or dismissing employees for publicly expressing unpopular beliefs and for not taking the same action,” says Richard Harvey, co-leader of GQ|Littler’s international employment practice in London.

“Here, prevention is better than cure: if employers have set out a clear policy on their stance on these issues, they can avoid charges of partisanship or arbitrariness. Employers should also distinguish between different types of political belief: for example, an employee who spoke at a white supremacist rally should not be treated in the same way as an employee speaking at an animal rights march.”

Stuck between a rock and a hard place, just how can employers best balance employee rights of expression with a company’s right to protect itself? “This issue gets to the heart of the intersection between employee’s home and office lives,” says Harvey. “On the one hand, employers want to create environments where employees can be themselves and bring their whole selves to work. There are clear benefits here to morale and also to business, as employees’ personal connections and outside passions can boost business. However, businesses also need to appeal to the widest customer base, whatever their political views.

“There is no easy answer that enables businesses to strike the right balance; the right approach, in any case, will depend not just on the employer’s workforce, but also their customer base, their values, and local sensitivities.”

With employee activism only likely to further increase in the months and years ahead, what best practice advice should employers consider before taking disciplinary action against members of their workforce?

“There’s a wide mix of factors here, but the most important ones will be the impact on other employees, the employer’s culture and values, and reputational risk,” replies Harvey. “Generally, those concerns will be more important than the specific laws around taking action in this area. However, taking specific local advice will be essential given the wide variety of protections in place for free speech, anti-discrimination, and dismissal rights.”

“Given that political activity is a protected attribute under anti-discrimination laws, employers must take legal advice before taking action against one of their employees,” agrees Gaspar. “The rationale for termination needs to be tested and scrutinised. More broadly, employers should carefully consider the reputational impacts of taking action and the likely response from stakeholders, including employees, shareholders, and consumers.”

“Don’t wait for your first tricky case to come up,” concludes Harvey. “You should decide now what your position is on public political statements through a consultation and communication exercise with your employees, and then roll out a policy. This will put you in a far stronger position when you find yourself reacting to a difficult situation.”