By Anthony Kaylin, courtesy of SBAM Approved Partner ASE
The “cancel culture” is not a new phenomenon, but a movement that has grown greatly over time. Per dictionary.com, cancel culture refers to the popular practice of withdrawing support for (canceling) public figures and companies after they have done or said something considered objectionable or offensive. Cancel culture is generally discussed as being performed on social media in the form of group shaming – think of the twitter mobs.
Cancel culture is really more than this definition. At college campuses, it has been the shouting out and disrupting a speaker, presenter, or an idea that a group disagrees with. It is censorship at its most basic extreme. College campuses have been the sites of major cancel activity, especially when faculty and students disagree to a point of a speaker presenting.
In 1987 the famous academic Allan Bloom wrote a seminal book entitled “The Closing of the American Mind,” which focuses on the issues of lost critical thinking and entertaining differing opinions to determine a truth of some sort. And since that time in today’s world, discourse has become more one sided and less tolerant of any opinion that even differs slightly from that being held as truth.
From an employer standpoint, the cancel culture should generally not be present in the workplace except in those instances that the employer finds necessary. Contrary to employee popular belief, there is no unfettered free speech at work; there is limited free speech based upon legal rights. Employers can limit or prohibit discussion of political issues on work time. However, the National Labor Relations Act (NLRA) does allow employees to discuss issues at work such as pay, work conditions, safety, and the like.
Employers need to be conscientious of how their communication policies apply to mask wearers. Employee activism is on the rise, and employers have to walk a fine line or risk losing talent. However, employers should consider having all employees wear blank masks. The failure to do so could open the door to unions passing out union labeled masks.
But what if the employee wears a political message in a pin or button? It depends on location. In a case before the National Labor Relations Board (NLRB) last year, the NLRB held that Wal-Mart Stores, Inc. policies that say customer facing workers can only wear “small, non-distracting” insignia no larger than the size of employee name badges. The basis for the ruling is that the business’ goals of enhancing the customer shopping experience and protecting merchandise from theft outweigh any potential harmful impacts on workers’ rights to organize and unionize, the board said. A similar rule for non-customer facing employees was struck down as illegal.
The issue for masks may be the same as buttons, customer facing or non-customer facing roles. Even so, if an employer requires employees to wear company labeled masks, that may open the door to the union masks. Therefore, nonmessaging masks are likely the best option for employers. At the same time, employers should not push employees to support a specific political issue or ideology. That could also be crossing a line.
Finally, what if employees decide to “strike” to support a specific viewpoint or issues — can employers discipline or fire those employees who participate? The NLRA applies to both union and nonunion employers. It is an interesting question. An employee “taking a knee” or “walking off the job” could be considered a protected form of concerted “political advocacy.” However, protection means that the subject matter of the advocacy must be “directly related” to a specifically identified employment concern of the participating employees. Further, even if employee actions fall within the “mutual aid or protection” clause of Section 7 of the NLRA, the time, place, and manner may ultimately render their actions unprotected.
As reopening continues, HR should consult with legal counsel on all issues of activism, from masks to labels, to actions; and update and publish their policies.
Source: Barnes & Thornburg LLP 7/20/20, Bloomberg Law 12/23/29