Do employers have a right to take action against employees who engage in controversial speech or other activities outside the workplace? Where do employees’ free speech rights begin and end? Must employers police workers’ conversations around the water cooler or what radio stations they listen to in their individual workspaces? And how do organizations strike the correct balance between treating workers lawfully and respecting diversity of thought, and protecting their reputations, relationships and revenues from harm? Presented by: Jon Goldberg Reputation Architects Kathleen Connelly Lisa Gingeleskie Lindabury, McCormick, Estabrook & Cooper

1. The Legal and Reputational Impact of
Political and Social Activism by Employees
Jon Goldberg, Reputation Architects
Kathleen Connelly, Lindabury McCormick
Lisa Gingeleskie, Lindabury McCormick
March 3, 2021

2. FIRST AMENDMENT SPEECH
Ø Private sector employees have no First Amendment
rights in the workplace (including consequences for off-
duty conduct).

3. FIRST AMENDMENT SPEECH
HYPOTHETICAL 1:

4. FIRST AMENDMENT SPEECH
HYPOTHETICAL 2:

5. FIRST AMENDMENT SPEECH
HYPOTHETICAL 3:

6. LAWFUL, OFF-DUTY CONDUCT
Ø Section 7 of NLRA: Limited speech protections when
engaged in “concerted activity” seeking support for
issues related to terms and conditions of employment
Ø Lawful off-duty conduct laws in nearly 30 states
Ø Some (Colorado) protect ANY lawful off-duty conduct
Ø 11 states (e.g., NY) prohibit discipline of employees engaging
in lawful “political activities.”
Ø Some have exceptions if the activity conflicts with the
employer’s business.

7. LAWFUL, OFF-DUTY CONDUCT
HYPOTHETICAL 1:

8. LAWFUL, OFF-DUTY CONDUCT
HYPOTHETICAL 2:

9. LAWFUL, OFF-DUTY CONDUCT:
Employer Considerations
Ø Is there a relationship between the conduct and the performance of
the employee’s job?
Ø Does the conduct put the business in an unfavorable light with
clients/general public?
Ø Is the conduct unlawful?
Ø Is the conduct against the employer’s policies?
Ø Employee morale
Ø The “Big Brother” effect
Ø All for diversity, but no tolerance for diversity of thought!

10. WORKPLACE POLICIES & CULTURE
HYPOTHETICAL 1:
XYZ Corp’s dress code prohibits the display of political or
social messages or other content deemed offensive to avoid
tensions among employees and between the company and
its clients.
After the death of George Floyd, the company issues a
statement in support of the Black Lives Matter movement
and allows employees to wear BLM masks to support the
cause.
Days later, an employee is disciplined for wearing a Blue
Lives Matter hat, in violation of the dress code.

11. WORKPLACE POLICIES & CULTURE
HYPOTHETICAL 2:
Susan regularly streams FOX News in her private office. A
colleague who occasionally goes into Susan’s office
complained to HR that she found the content offensive. In
response, the company instructed Susan to not listen to talk
radio in the workplace.

12. POLITICAL & SOCIAL EXPRESSION IN THE
WORKPLACE POLICY?
Ø Need to balance legal, cultural and reputational considerations
Ø Consider whether you want to avoid supporting one viewpoint over
another
Ø Employee and public perceptions
Ø Have a clear policy clearly stating what is and is not allowed
Ø Address speech/symbols on clothing
Ø Ban all displays?
Ø Be consistent
Ø Rather than ban discussions, provide guidance for conversations
Ø Polite, unthreatening and respectful of others’ views
Ø Change subject or retreat
Ø Free to decline participation
Ø No retaliation

13. Bios
Lisa Gingeleskie Bio
Kathleen M Connelly Bio
Jon Goldberg Bio

14. Jon Goldberg
jon.goldberg@reputationarchitects.com
Reputation Architects Inc.
75 Eisenhower Parkway, Suite 140
Roseland, NJ 07068
973-241-1010 direct
973-241-1000 main
www.reputationarchitects.com
Kathleen M. Connelly, Esq.
kconnelly@lindabury.com
908-233-6800 x2367
Lisa Gingeleskie, Esq.
lgingeleskie@lindabury.com
908-233-6800 x2315
Lindabury, McCormick,
Estabrook & Cooper PC
53 Cardinal Drive
PO Box 2369
Westfield, NJ 07091
www.lindabury.com