Roe v. Wade Ruling Raises Issue of Activist Workers

​Company executives have sometimes kept social and political issues and advocacy at arm's length.

But that's not good enough in 2022—not with the spotlight on a burgeoning number of high-profile social advocacy issues.

Take Roe v. Wade, arguably the highest-voltage social issue in the U.S. right now.

Less than two weeks ago, the U.S. Supreme Court overturned Roe v. Wade, the 1973 case that guaranteed the right to an abortion.

Given that the high court has sent the issue back to the states, civil unrest could reach a crisis point as demonstrators on both sides of the issue take to the streets and social media to vent their anger about the ruling or show their support for it.

Even so, most companies are continuing to avoid taking a public stand on the issue. According to a new survey of 1,003 human resource managers by the Society for Human Resource Management, 97 percent of U.S. companies didn't issue a statement regarding a leaked Supreme Court draft opinion overturning Roe v. Wade, which largely mirrored the final ruling.

What is clear is that if employees respond aggressively on company time or in the company's name, management won't stand down.

Case in point: In recent weeks, several U.S. companies have taken action against workplace advocacy.

• Elon Musk's SpaceX fired five employees who penned a "dear CEO" letter that criticized Musk's activity on Twitter, calling the billionaire's public behavior "a frequent source of distraction and embarrassment." The swift dismissal sent an unmistakable shot across the bow from the corporate suite to employees embracing workplace advocacy.
• The Washington Post recently fired a staffer who took to social media to criticize other Post employees.
• In a May 2022 memo, Netflix leaders told agitated staffers to leave their political preferences at the door after staff complaints over what the employees viewed as extreme content broadcast by the streaming company.

What Speech and Actions Can Companies Prohibit from Activist Employees?

Just how much latitude should companies give activist employees when social unrest boils over and when corporate brands may be at stake?

"From a legal point of view, a company has broad discretion to terminate employees for any conduct, at the workplace or apart from work on social media, that the company believes negatively affects the reputation of the company," said David T. Azrin, a partner in the New York City office of Gallet Dreyer & Berkey, which focuses on employment and corporate law. "Yet, the legal question is different than the moral or social question, [which is] whether companies should terminate employees for activism outside the workplace and whether such terminations may hurt employee morale."

Generally speaking, companies cannot prohibit employee advocacy that is legally "protected"—for instance, activity aimed at forming a union or statements about work conditions. 

"But if the social activism by a group of employees is directed toward a social cause, such as Roe v. Wade, rather than workplace conditions, then it is not protected," Azrin said.

Historically, there's also been a clear firewall between what employees did off the clock and their performance and behavior at work.

"For a long time, most companies didn't have to know, care or worry about an employee's personal views, habits, or political or social activism," said Vincent Chan, chief operating officer at Christina, a Los Angeles-based real estate development and investment firm. "Social media has totally burned that firewall down. Now CEOs, COOs and CHROs have to have their antennae up constantly because they don't have the option of not knowing any longer, even if an activist employee conducts themselves on the clock perfectly, does their work flawlessly, and always arrives early and stays late. Opinions and impressions and how they reflect on a company and its brand matter."

Steps to Take When Drawing a Line

How can companies strike a balance between allowing employees to take political stances on the job and looking to control highly charged viewpoints? Workplace experts say executives should weigh any moves on a case-by-case basis.

Here's how company executives can get a better grip on social activism on the job:

Have a firm social media policy. Brandi Baldwin, a workplace expert and lecturer at The Wharton School at the University of Pennsylvania, recommends a social media policy that discourages employees from negative commentary about political or social topics.

"One employee's tweet can negatively impact an entire company's brand," she said. "That being said, employees who opt to anonymize their identity on social or who have private social media profiles may be able to post more freely."

Determine which executive is charged with protecting the brand. One C-level executive should be tasked with deciding whether to hold activists responsible for actions deemed inappropriate or harmful to a company.

"The chief human resources officer is usually the person who'll be responsible [for] monitoring company policy violations, whether related to activism or not," Baldwin noted.

"That will ensure that there is consistency with how situations are handled."

If something happens, hit "pause." If potentially volatile events occur and threaten to poison the company well, management should resist the urge to engage with the employee or employees—at least right away.

"Keep cool until you've had a chance to assess the situation and discuss it with trusted advisors, including labor and employment counsel," said Brian G. Klein, a labor and employment attorney with Weinstein & Klein P.C. in New York City.

Poor communication could antagonize the employee, entrench the employee's position and make any efforts at resolution that much more difficult. And any adverse employment action could potentially lead to a claim of retaliation.

"Plus, there's always the potential for reputational harm in the event your aggrieved employee takes to social media to vent their frustrations," Klein noted. "Better to hit pause, talk through your options and develop a game plan."

Bring in a third-party investigator. When a company is dealing with an aggressively activist-minded employee, "you need to protect yourself every step of the way," Klein said.

"Thoroughly review the employee's actions and see if they've [done anything] which could be deemed protected activity."

Consider bringing in a third party to investigate.

"This gives the company some credibility and wards off claims of a nonresponse, which could result in turning the activist employee into a martyr," Klein noted. "An investigation could also uncover evidence of malfeasance on the employee's part."

Gauge appropriate penalties. What actions can management take if an employee harms the company's reputation with social media posts or even internal Slack comments?

"Like with any other policy infractions, companies should have a corrective action plan and process in place," Baldwin said. "That usually starts with a verbal warning and progresses to a documented warning and can end up in a full termination."

Adhere to company policies. Companies have to remember that "what one person finds offensive on a Slack channel may not bother someone else," Baldwin noted.

"Written policies are key to making sure that behavior of this kind can be addressed consistently. The company needs to identify for the employee how their actions have negatively impacted the work environment."

And while people are entitled to their opinions, some employees must understand that their opinion doesn't need to be expressed in every setting, Baldwin said.

Brian O'Connell is a freelance writer based in Bucks County, Pa. A former Wall Street trader, he is the author of the books CNBC Creating Wealth (John Wiley & Sons, 2001) and The Career Survival Guide (McGraw-Hill, 2004).