Welcome to the bringing the human Back To Human Resources,
podcast, the podcast, all about the delicate balance between
people and business. And quite literally reconnecting
the to my name is Tracy Ruben and I've spent nearly my entire
professional career in a jar, join me as I share stories
opinions and words of advice with you each week.
Hi everyone. This is Tracy Ruben.
Welcome back to another episode of bringing the human Back To
Human Resources. Don't forget to rate Review And
subscribe wherever you are listening to this podcast.
I release an episode every Tuesday.
So I'd love for you to be a part of this journey every single
week before I get into this episode this week.
I just want to preface by saying that if there is anything that
you hear that you disagree with, don't appreciate have a
different view on. Don't stop listening.
Keep listening, listen until the end and then if you still
disagree or have an opposing, You whatever email me, message
me, reach out because I want to have the conversation with you.
We can video chat, I'll send you an invite.
I want to have the conversation instead of losing someone to an
opposing view and the same goes for me when I hear something
that I totally disagree with. Even if it pains me, I still
keep listening. So I hope that that inspires you
to keep listening, even if you disagree with me.
Then again, listen all the way to the end and then reach out to
me, you can email me, you can message me on any social
platform. However, you want to reach out.
I'm open to this discussion, let's get into it.
So there's a lot that's been going on these past few weeks.
I think we all thought that 2021 was going to be a little bit
different, maybe a little bit more calm more relaxed but in
terms of what's going on in the u.s. it has been everything
except that and actually I thought it would be interesting
to talk about something that's really floating around the HR
space. He's the legal space and that's
the question on employee speech. And what employees speech is
protected. A lot of people think that
because we, as Americans are in an at-will country and we have
certain rights and amendments that give us our right to like
the freedom of speech. For example, our First Amendment
right that that means that we are allowed or entitled to talk
about anything and everything at work.
So my message to you, That actually that's not true.
Before I even get into that, I want to break down a term that I
just used which is at will. I will employment basically
means that the employee and the employer have the opportunity to
sever the relationship at any point without any warning or
advance notice. So now understanding what
at-will employment is. It's also important to
understand that Most states in the United States are at will
employment States the OWN. Only state that is not an
at-will employment state is Montana.
Actually some states, do have exceptions in there at will
employment that you actually need to provide a little bit of
notice or some reason a termination.
But again all states except for Montana are at will States
meeting the employee or the employer or both can dismiss or
sever the relationship at any time, without any reason.
So I'm an employee. I don't like my job anymore.
I Quit. I don't have to give notice, I
don't have to give a resignation letter.
Although, there are certain things that are suggested, of
course, I would suggest that you always give notice.
And I would suggest that you always give a resignation letter
because that's what's appropriate.
And professional doesn't, just because the law doesn't require,
it doesn't mean that you should throw manners out the window.
Of course, similarly employers are therefore not obligated to
give any reason at time of termination.
However, most employers Again are going to do what is
professional and appropriate, not necessarily just blindly
follow the law. So most employers are going to
terminate with Reason Not Just because because actually that
opens them up to litigation. So now that we have a little bit
of a better understanding of what at-will employment means.
I think we should break down the idea behind freedom of speech
and employee protected speech so employers Is don't actually have
complete freedom of speech at work.
The only exception is really public or government employees.
However, employers do kind of navigate this quite carefully
because there are federal and state laws that protect workers
speech in certain specific situations.
For those of you who are not American or maybe you don't have
as much of an understanding of what our rights are, As
Americans. Maybe you are American and you
don't have as much of an understanding.
I am To break down every term as best I possibly can and I will
link all of my articles and citations in the episode details
please. No, I am not an expert in law.
I do not have a law degree but in my career I obviously have to
have some level of expertise and knowledge around laws employment
law especially because we have employees and we are running a
business and there is a lot that goes into That.
So the First Amendment provides citizens Americans the right to
freedom of speech among other things, that doesn't mean that
employees can necessarily say whatever they want.
Again, business is also can't prevent all kinds of employee
speech. So the National Labor Relations
Act, also known as the nlra protects employees rights to
discuss terms and conditions of their employment.
So for example, All employees actually can discuss their pay
with one another especially when it comes to their decision.
To end up asking for more need more money because that is a
terms and conditions of employment, most of the time
managers actually want to prevent employees from talking
about their wages with one another.
And while we definitely can say, hey talking about pay can create
an environment that is not so inclusive, or it can make people
feel uncomfortable. So We definitely don't encourage
it. Employees also have the right to
talk about unlawful conduct like harassment, discrimination
safety violations. However, they don't have the
right to make racist sexist, or discriminatory comments.
So some a lot of this information is coming from Sherm
which is a very, very popular HR resources website.
And again I will link all of these citations in the episode
details. I'm specifically going to focus
on that last part. In this episode, I'm going to To
repeat it just one more time, employees, have the right to
talk about unlawful conduct in the workplace.
So, for example, if Susie and Sally are at the water cooler
and there are talking about a situation that they witnessed
that is protected speech because they are talking about a
situation. Let's say it's sexual
harassment, they saw sexual harassment and they're talking
about it. That is their right to talk
about possible, unlawful conduct.
In the workplace, Susie and Sally should report that conduct
because we all play a role in ensuring the harassment is not
happening in the workplace for example, right.
But just to break it down, those two employees, they are
protected. Would we encourage different
types of behavior to actually reported instead of talking
about it amongst each other? Totally, the difference is if
Susie and Sally are at the water cooler.
And they start saying things that are discriminatory Tory.
Harassing, maybe they say things that are racist sexist or
homophobic, those things are not protected.
So just because you're an American and you have the your
right to the freedom of speech, you are still an employee and
you do not have the right or the freedom to express racist
section sexist or other discriminatory comments and I
don't know. Any workplace that doesn't have
an anti harassment and discrimination policies.
So Susie and Sally. While their speech is protected
when they're discussing unlawful, conduct is true.
Susie and Sally are not protected when it comes to
discussing things that are in violation of a harassment or
discrimination policy. Similarly, there's been a lot of
conversation around what happens on social media can an employer
hold an employee accountable to what they post.
It's a bit of a gray area which I think is true for everything
in HR. In most cases employees have the
right to conduct themselves on social media, really, however,
they want. Assuming it's lawful, however,
there are some areas where employers can talk to employees
about their social media, especially if it's in violation
of company policy, for example, sharing sensitive or
confidential data whether it's about an employee or the
business. That's probably the best example
that I can share with you. If You are a manager or you are
in the HR space and you feel like there's something that you
should be addressing with your employee based on what they post
on social media. I encourage you to reach out to
an employment attorney, or a member of your legal team or to
at least speak with other experts on this topic, because
there certainly are lots and lots of Articles and
understanding on how to address social media.
So, going back to this point that I said, I was really going
to hone in on On which is the harassing and discriminatory
speech, not being protected. I think this is really
important, given the political climate we saw recently that
there was a riot at the US Capitol.
There have been people arrested raising the question of, can
they be fired by their employer? I have articles that really do a
good job of talking about this. So I'm going to again link
everything in the Details. So, first and foremost, if an
employee is arrested and employer does have the right to
terminate their employment. We talked a lot about unlawful
conduct, right? Most companies in their codes of
conduct prohibit, unlawful conduct.
And so, if someone has participated in unlawful
conduct, in any way Employers, in most cases are able to
terminate employment, the biggest key here is that
employers need to be consistent. So, it could look discriminatory
if an Lawyer terminates one person, but not another based on
their unlawful conduct. So if an employer has a
zero-tolerance policy around unlawful conduct and they
decide, okay, we are terminating anyone who is arrested,
regardless of, what their arrested for, or they
participated unlawful conduct, doesn't matter what it is.
We're terminating them that they have to just be consistent.
So, yes, if you get arrested, if you participate in unlawful
conduct, you can lose your job. So one of the questions that's
come up is if these people these rioters can cite the First
Amendment to avoid being terminated or that, that would
be a reason or justifiable reason to keep them employed and
employers like oh you know they're going to say this is
their First Amendment right? You know maybe we can terminate
them. Well actually that that's not
true for free speech does not protect you from rebelling
against the government there that It is should be understood
by every American. I think, although clearly it's
not. So there is a great quote from
an article that I will share. And it's from an attorney at a
Consulting, a law firm in Minneapolis, and she says, our
company's only work. When we're in a country that has
effective laws, these people were working against their
employers period. The first amendment gives you
the right to say what you will. But it doesn't protect you from
consequences. So this is basically exactly
what we were talking about with the water cooler example.
We can talk about unlawful conduct in the workplace, but we
can't participate in unlawful conduct whether that's in the
workplace or outside of the workplace.
My obligation, as an HR partner and as an employer, is to
provide a safe and inclusive workplace.
Every employer has that obligation Ian at least in the
United States. That is a workplace requirement
and expectation. So if an employee is arrested or
caught rioting vandalizing participating in unlawful
conduct employers, absolutely have the right to terminate that
employee. Just like, if an employee
engages in discriminatory speech, or actions employers
have the right to terminate that employee, if the freedom of
Speech, or the first amendment allowed employees to escape
termination. That would mean that people who
participated in sexual harassment or discrimination of
any kind in the workplace were protected.
That's ludicrous. Those people are not protected.
Those people are terminated for their actions based on the the
anti harassment and discrimination policies.
That all employers are expected to enforce this.
All raises a question of do employees fully.
Understand company policies employers do have a
responsibility to make sure that policies are well-known or
documented. So for example, employee
handbooks are a great way, a very important way to
communicate policies. However, not every policy is
going to be written out with specific details, right?
Like a hand book is a guide. It's not, it's not a manual for
every single action or reaction, I don't have to explicitly.
Right. For this situation, you are
going to receive a final warning for this situation.
You're going to receive a first warning, that's not necessary
because employers can use their discretion based on the
situation handbook should outline, what is tolerated or
what is not tolerated in the workplace, it does not have to
say, don't try it. Don't rob a bank.
Like, those things are not required to be explicitly listed
or outlined in a handbook. Because it's suffice has to say
unlawful conduct harassment discrimination Etc.
Are not tolerated in the workplace.
So, shifting gears a little bit there, have also been questions
on whether or not employees, can engage in political
conversations at work. So, removing ourselves from the
conversation of unlawful conduct and moving into a space where
we're talking about politics, Someone is Democrat and someone
is a Republican and someone else has a Libertarian.
And someone else is part of the green party.
Let's say they're having a conversation and they have
opposing views. I think.
On a personal note, conversations are really
important inside of the workplace, outside of the
workplace. We have to be able to talk to
each other to come together and discuss our views with respect
for one another. And with an open Open openness
and willingness to understand the other person's perspective.
I also think that when someone else's opinion is a stark
contrast to our own, it gives us the opportunity to explain why
our opinions are our own and to understand their opinions.
Because at the end of the day, everyone comes from a different
background, different upbringing Etc.
But there's a big but here, political conversations are a
very Sticky situation. Is it okay to talk about
politics at work? Am I allowed to share my
political opinion at work in theory?
Yes. Because again this is where
employee speech is pretty protected like these are
opinions, maybe they're not disruptive but employers also
have certain standards around professionalism, most employers
really don't want the political conversation to happen at work
because it can create just a little bit of stickiness.
You know, we want to have like a team team mentality.
Team culture when we find out that we have completely
diverging opinions on things that are very, very close to the
heart and chest like politics, that can create it really can,
it can create a little bit of animosity, right?
So at the end of the day, employers can't necessarily
limit political speech based on my understanding, however, they
can evaluate whether Disruptive or not.
So, if political speech is happening on the sales floor in
the middle of a meeting with customers or clients and it
actually ends up being disruptive or it takes on the
element of speaking for the company, for example, and it's
not no longer the employees opinion but it actually is
representing the company's beliefs.
It is a gray area because we we aren't going to hold someone
accountable for having a political opinion that we don't
necessarily agree with. With however, if the employees
engaging in political conversation that is disruptive
to the workplace, that is obviously a reason for the
employer to step in and have a conversation.
Maybe the employer doesn't move to corrective action or
termination but instead they say hey I totally respect.
We all have our own opinions and that's totally fine.
I would just ask that you leave the political commentary and you
hold the political speech for non-work-related.
Did events and moments because it could create a culture that
isn't as inclusive, because we all have different opinions, and
we all come from different backgrounds.
I think that's totally appropriate and especially if
you've established a really good relationship with your team, it
probably will be kind of easy to have that conversation.
If there is divisive and disruptive conversation in the
workplace. But again, underlining on the
disruptive peace there can be Disciplinary action up to and
including termination, but the employer does have to do their
due diligence and investigate. If there has been a concern
raised or whatever, the situation is companies, again,
most of the time have policies around conduct and
professionalism. So really, what I would do if a
situation came up like this, I would evaluate.
If the conduct exemplified by the employee is in violation.
And of the codes of conduct that the employee, the employee
handbook or that the company policy layout for the employee.
So, if an employee is having political conversation and it
moves into a disruptive category, it's probably in that
same realm of harassing, or discriminatory comments.
Certainly these policies that employers set for employees can
be again, very gray. Nuanced have caveat However
again, harassment and discrimination are the common
denominator. This is somewhere where if you
are a manager or an employer or HR partner, you should take a
partner and make sure that you are doing your due diligence to
ensure that the employee is not being held accountable to a
standard that isn't consistent and clearly set, and that the
employee is being held accountable appropriately.
Under the definitions assigned by the laws and Company,
policies. Divisive political speech can
easily very easily cross over into claims of discrimination or
even a hostile work. Environment companies should
have anti-discrimination policies that allow them to act
on these situations but that also prevent these situations
from happening when situations like this happen companies have
the right to hold employees accountable to those standards
and even in in this incredibly polarizing political climate
that we are in As Americans employees.
Again, I can only say this as much as humanly possible
employees are not protected when it comes to harassment and
discrimination, they cannot engage in that kind of conduct.
And I think that in this day and age, that's pretty understood if
you're being investigated for. And it happened, you probably
should anticipate that you're being terminated because we are
living in a society where there is no tolerance for that, or at
least. That's my, my feeling is that we
live in a society where there's no tolerance for that, I hope we
are. So I just want to reiterate
again, employees have protected speech when it comes to their
terms and conditions of employment And discussing
unlawful conduct in the workplace.
Place and things like that. However, they cannot engage in
unlawful conduct and they cannot conduct themselves in a way that
violates the anti harassment and discrimination policies that are
set in the workplace. My final point on this is just
to remind you that we are all whether we like it or not.
Representative of our companies, whether we're on the clock or
not, which is why I always say that on my podcast, I'm going
Express opinions that are of my own belief and opinions and and,
and not representative of my company's beliefs or thoughts,
or opinions, or what we've done, right?
Like I am separating myself in saying that because what I
believe in and what I say on my podcast isn't necessarily what
my company believes or what my company stands behind.
So it's important that in a public setting like a For
example, where I am talking about things that are quite
polarizing or based on, you know, employee rights, employer
rights. That I make that clear the same
thing goes for an employee, that's not on a podcast.
So like if an employee is a cashier, they still represent
the company. They work for.
So if that cashier is talking to a customer about something that
the company is in the Taking a stance on they are potentially
speaking for the company, right? Like that is the reality that
every employee needs to acknowledge.
If you are not willing or if you are, yeah if you're not willing
to be a spokesperson for the company, you should really be
reconsidering what you are sharing and talking about at
work. Now, one of the things that
companies by and large over the summer, Were this in 2020, had
spent a lot of time on were social and racial Injustice has
right. Like lots and lots of
conversation around Standing Up Against Racism because of all of
the injustices that occurred, especially in 2020, though we
know that they've been going on for years and I personally stand
behind this. I think it's a great idea for
companies to talk about these things because And I believe in
having the conversation and the employees comprise the company,
right? So you have employees who are
black indigenous people of color and they want to feel safe and
they want to know that their company stands behind them.
We all choose companies based on our values.
So, if I'm going to work for a company that has diverging
values from mine, I'm probably not going to work there for very
long, but if I believe in Social and racial I'll Justice and
standing up against injustices and racism.
Then I'm want to work for a company that believes the same
that conversation from companies.
While the topic is political because we're talking about
systemic racism and all of those things that do present
themselves in the political space, it is not a political
comment at least for a company companies when they are talking
about social and racial injustices and Incorporating d e
and I or diversity, equity and inclusion.
I apologize for the acronym. Now, you know, that's called
DEA. And I, when they engage in that
conversation, they're not taking a political stance.
They are taking a stance based on Humanity, based on what their
employees need to hear from them, based on being a part of
society and members of society. And employees should understand
that. When an employer takes a Dance
like that. They're not telling you what to
believe politically they're not, they are telling you what's
important to them. When it comes to inclusivity
diversity equity and just being a good decent, human being in
the workplace, that's what companies are sending as a
message, they're not telling you who to vote for.
They're not telling you that your beliefs are stupid.
They're not telling you that your political beliefs are
stupid. They're just telling you what
they care about what they value and what's important to them and
what they hope is important to you.
And I think, I really believe this again personal opinion.
Everyone should be able to stand behind equality and justice.
And if you can't, you have to look introspectively and think,
do I not stand for this? Because I've never experienced
it, or do I? Not And for this because I don't
believe in equality. People, who don't stand for it,
I am not going again. I'm not going to polarize this.
I'm not going to say people on this side of people on that
side. But if there's a person who
says, I don't believe in racial or social justice and equality,
those are people that either are blessed to have never
experienced Prejudice or discrimination, which I can't
relate as a Jewish woman. I really can't relate or they
just have not Given themselves the opportunity to understand
why it's important to someone else.
So really, what I'm trying to get at here is that employers I
think underscored their anti harassment and discrimination
policies when they stood up Against Racism and social
injustices, if companies weren't vocal about it, they didn't have
the opportunity to talk about why those values matter I
recognize that not every company is going to be outspoken about
racial and Injustice and where they stand?
I think that it is important for companies to always do the right
thing and to talk about what that right thing is.
And this whole episode has talked about the policies of
anti harassment and discrimination and what is
protected employee speech. I think that companies actually
send a really strong message of what they're anti harassment and
discrimination. In policy actually means, when
they stand up against it, not just in an investigation when
they terminate someone. But when they actually say we
stand for X, we don't stand for. Why?
I think we'll probably see more of that.
I think will probably will see, companies, talking more about
their beliefs and what comprises, what brings people to
the table, what people value. And again, that's not the
company telling you who to vote for or To believe, it's just
about human decency, right? And like how we respect and
treat people and every company, I think has an obligation to
make it very clear. That employees should expect a
safe inclusive, workplace. So the key takeaways for this
episode are as follows one employees, do have certain
protected types of speech, they can't just say anything they
still. They are expected to follow and
be in line with anti harassment and discrimination policies as
well as other types of codes of conduct to employers.
Have to have a clear policy around, what is tolerable, and
what is not three employers, have to fairly and diligently
investigate any claims of harassment or discrimination,
whether it's from employee speech, or whether it's from
employee, And finally, employees should know that any
inappropriate or unlawful conduct outside of work can
impact employment. Thank you so much for listening
to an episode. That quite frankly was not easy
to record or make because it required a lot of research.
So, I hope that we can just have an open and candid conversation.
Not everything that I say is, right, not everything that I say
is wrong. I think that the My best advice
to you is to get second opinions to do your own research and to
have the conversation. So if there's something that you
want me to dig in into more or you want to kind of connect on,
please email me, message me, reach out, I invite and welcome
the conversation, whether it is an aligning view or not.
As always, you can connect with me pretty much on every
platform. Just revamped an updated my
website. So I really would love if you
can take a look. It's HR Tracy.com just a
reminder. My name is spelled with an i.
So it's HRT raci.com. I also just joined Clubhouse.
So you can find me by searching HR.
Tracy, I'm the same age are Tracy.
I'm pretty much every platform. So follow me on clubhouse,
Instagram, connect with me on LinkedIn.
I have a group page on LinkedIn as well.
All of those links are on On my website.
So you don't have to remember a single thing that I say you can
just go to HR Tracy.com and actually you can also submit
anonymous questions or feedback through my website.
So if you go to my website and you click reach out, you
actually can fill out that submission form you don't have
to include your name, you can just put in your email doesn't
matter and it will allow for you to submit questions or feedback
anonymously just know that even if you reach out with your name.
And All of your information. I will always keep it
confidential. I am your HR partner at the end
of the day I'll see you next week.