Institutions around the country are in turmoil, subject to loud clamoring about events in the Middle East. Many members of their communities are making claims of anti-Semitism, while there are counterclaims of Islamophobia. Public universities and institutions may have no way to avoid those disruptions, but fortunately private employers need not be pulled into that melee—if you have policies and practices to protect you.
You Can Google This
The dangers of politics at work are quite real, no matter how careful you are. On April 16, 2024, as an act of protest over Google’s cloud-computing deal with the Israeli government, some of the company’s workers engaged in what it describes as a “physical disruption inside our buildings,” with “employees disrupting and occupying work spaces, and making other employees feel threatened and unsafe.” Google terminated the employment of an estimated 50 employees who were found to have been directly involved in disruptive activity.
Google CEO Sundar Pichai reiterated that employees should keep “politics” out of the workplace, adding, “This is a business, and not a place to act in a way that disrupts coworkers” or “fight over disruptive issues or debate politics” in the workplace. Meanwhile, dozens of the terminated employees have filed charges with the National Labor Relations Board (NLRB), saying the terminations were for a “peaceful, non-disruptive protest that was directly and explicitly connected to their terms and conditions of work.”
‘No Retaliation’ for Lawful Off-Duty Conduct
A big distinction exists between on-duty and off-duty behavior. California employers are generally prohibited by statute from taking adverse employment action against employees as a result of their lawful off-duty, off-premises activity. An employee can stand on a soapbox in a public park or march in a licensed parade in favor of the Ku Klux Klan or Hamas or any other evil ideology, and adverse job repercussions are not permitted.
But the key word is lawful.
If an employee is observed blocking a bridge, hitting a police officer, or forcibly occupying a building, that conduct isn’t protected under the labor code. Similarly, protesters who surround and block other people or individually threaten or harass them aren’t engaged in protected speech but may well be engaged in unlawfully discriminatory behavior.
But those lines must be carefully studied and are not always easy to discern. For example, television cameras clearly documented protesters arrested while unlawfully blocking the San Francisco/Oakland Bay Bridge and Golden Gate Bridge for hours. But the San Francisco and Oakland district attorneys say they don’t have enough evidence to prosecute, making an employer’s decision to terminate shaky. Bottom line: You generally cannot punish an employee for off-duty conduct unless you’re prepared to show it was unlawful.
‘No First Amendment Rights’ at Private Workplace
The rule is very different when an employee is on the job or at the workplace. Your policies control how much political speech, if any, is permitted at work, and the first amendment generally doesn’t apply. For the past several weeks, and for the near future, public discussion has been dominated by the Hamas rampage on October 7, 2023, and the deadly Israeli response in Gaza. The best advice is to allow no political discussions at work. Once you open the door to those discussions, it’s hard to close it, and nothing good comes out of heated political discussions at work.
Indeed, allowing that discussion creates a danger of charges of anti-Semitism and/or Islamophobia. Some of the rhetoric has been anti-Semitic on its face, such as “Jews support genocide” or “go back to Poland.” But even without that overt language, a recent study by the Pew Institute showed that Israel is an “integral” or “important” part of the Jewish identity of 83% of American Jews. They may view political support for Hamas’ violent and ideological demand for Israel’s destruction as anti-Semitism.
At the same time, Hamas supporters have made claims of Islamophobia when their conduct or argument is challenged or dismissed. While this tension creates unavoidable governance headaches for public universities and institutions, you can and should protect yourself from the entire discussion.
Create a ‘No Cable News’ Zone
The best rule is to prohibit all political or religious conversations at the office. Don’t create any open discussion forums for your employees, in real time or on-line. You are inviting any trouble that follows. Don’t make any exceptions for any side. If you allow people to promote or collect money for a local church or little league, it makes it that much tougher to prohibit solicitation of support or funds for any cause from Planned Parenthood to MADD to GLADD to the NRA.
Of course, you must respect everyone’s personal religious expression, so make sure your workplace shows no hostility against any individual wearing, for example, a hijab, yarmulke, or necklace with a cross or a Jewish star, or to those who need to create off-duty time for individual prayer. The rules regarding religious accommodation, discrimination, harassment, and retaliation haven’t changed and are straightforward if you don’t allow politics into the mix.
Bottom Line
We find ourselves in the most politically polarized America in living history. It’s good for you, and good for your employees, to create an oasis away from that storm while at work. Your policies and practices should prevent anybody from disturbing that calm, until they get home to cable news and get riled up again.
Mark I. Schickman is the editor of California Employment Law Letter. You can reach him at mark@schickmanlaw.com.