In the wake of George Floyd’s senseless killing by a police officer in Minnesota, and other recent acts of racism, and in light of widespread calls to end police brutality and fight for racial justice, individuals across industries are speaking out en masse about the conditions of their employment in order to shed light on systemic racism. No small number of current and former employees of fashion brands, media conglomerates, and retailers, for instance, are sharing their stories of experiencing and/or witnessing racism on the job, prompting companies to promise to implement immediate and concrete changes.
A wide array of individuals are speaking out, and calling foul on companies ranging from direct-to-consumer fashion brands like Reformation to publishing giants like Vogue’s parent company Condé Nast. At the same time, however, many fear that doing so will jeopardize their employment, or more specifically, that they will be retaliated against for voicing their truths about their workplace and its practices and policies when it comes to diversity and discrimination. This raises questions for individuals about their rights when it comes to making public statements, and if – and how – that might impact their employment. It also poses questions for employers in terms of their legal responsibilities in such situations.
It is well-established in U.S. federal and state laws that employees are legally protected from being fired – or otherwise being discriminated against – based on their race, and that employers have a legal responsibility to provide a workplace that is free from discrimination, harassment, and retaliation. But what is the law when it comes to an employee speaking out against his/her employer in connection with claims of racism and/or discrimination within the company, such as on social media? Can an employee be fired for that?
Companies are widely known to maintain social media policies that prohibit employees from publishing content that could harm their business and/or its reputation. While “employers have a lot of leeway in regulating employees’ postings, particularly ones made at work,” per Washington, DC-based employment firm Bernabei & Kabat, and given that raising complaints about racism within the ranks of a company may very well create widespread ramifications for a business, policies that seek to enjoin employees from engaging in certain discussions or whistleblowing about a company’s illegal activities are unlawful.
“Many state and federal laws protect employees from employer retaliation” in connection with comments they make about their working conditions, according to Legal Aid at Work. The San Francisco-based nonprofit legal services organization states that “complaining about harassment or discriminatory treatment” by an employer or supervisor, for example, falls neatly within the bounds of protected activity that an employer cannot respond to with an adverse action (i.e., “any act by an employer that negatively and significantly affects the terms and conditions of one’s employment”).
In other words, employers may not retaliate against employees as a result of such speech, regardless of whether that speech comes in the form of a verbal complaint or a social media post.
Still yet, if employees are acting together to address work conditions (whether they are part of a union or not), their conversations, including on social media, are likely to be protected by the National Labor Relations Act (“NRLA”), a federal law aimed at protecting the rights of employees and employers, and encouraging collective bargaining. As such, discussions about “wages, benefits, or other working conditions,” are within this realm, and subject to protections of the NRLA, which “applies to most private sector employers, including manufacturers, retailers, private universities, and health care facilities,” and their employees (as distinct from independent contractors/freelancers, who make up an increasingly sizable portion of the labor pool in the fashion industry).
(One major exception here is of course: a little contract provision called a non-disparagement clause, which may be included in an individual’s separation and/or settlement agreement with their former employer, which is precisely how Nicolas Ghesquiere landed himself in court against Balenciaga’s parent company Kering back in 2013. Such a provision may also be found in stock option of or benefits agreements and employment agreements, and generally state than the “Employee agrees that she will not disparage the Company or any of its officers, directors, or employees” … even if what the individual is saying about the company is true; if it is not then he/she could be facing a defamation claim).
As for how and when such relation needs to take place to be actionable, Legal Aid at Work states that retaliation – which make take the form of termination, demotion, or suspension, threats, reduction in pay or hours, and/or unequal treatment, among other things – “can occur at any time after an employee exercises a protected right, and does not have to take place immediately.” An action taken by an employer “can be retaliatory even if it occurs weeks, months, or possibly even years later, so long as the employer took the action because the employee exercised a legal right.”