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When And Why Companies Can Restrict The Emails And Tweets Of Executives And Employees
From:
Edward Segal, Crisis Management Expert Edward Segal, Crisis Management Expert
Washington, DC
Sunday, April 10, 2022


The cover of Edward Segal's book on crisis management
 

Commentary From Crisis Management Expert Edward Segal, Bestselling Author of the Award- Winning Book "Crisis Ahead: 101 Ways to Prepare for and Bounce Back from Disasters, Scandals, and Other Emergencies " (Nicholas Brealey)

In the business world, free speech can sometimes come with a price for employees, executives and their organizations. While it is not unusual for private opinions to contradict corporate policies and preferences, a crisis can result when those differences go public—and how companies respond.

Fired For Speculating About Impact Of Gas Prices

According to the Associated Press, an employee of a Missouri-based Applebee's franchise was fired last month after sending "an email speculating that high gas prices and the end of pandemic stimulus money would force employees to work longer hours for lower pay." The wire service said the email was widely circulated online.

"This is the opinion of an individual, not Applebee's," Kevin Carrol, Applebee's chief operations officer, said in a statement, adding that the franchisee terminated the midlevel worker. The employee didn't work directly for Applebee's."

The Associated Press reported the issue arose after someone shared the worker's email with Jake Holcomb, "who was the manager of an Applebee's restaurant in Lawrence, Kansas. He quit soon after he read the email, which said: 'As inflation continues to climb and gas prices continue to go up that means more hours employees will need to work to maintain their current level of living.'"

Speaking Out Against School Closures

CNBC reported in February that "Speaking out against school closures during the Covid-19 pandemic was a decision that Jennifer Sey says came at the cost of her job as a senior executive at Levi Strauss," according to an interview on CNBC's Squawk Box.

'Pushed Out'

"Sey told co-anchor Andrew Ross Sorkin that she was 'absolutely pushed out' of the San Francisco-based clothing giant after she refused to stop speaking out on her views that school closures were ultimately harmful to students. She said she resigned on Sunday and refused a $1 million severance package because it would have required her to sign a nondisclosure agreement about why she left the company.

"It was made clear to me that there was not a place for me given the controversial nature of what I had said over the past two years about kids and school," Sey said.

Drawing Criticism

According to the New York Times, "Ms. Sey's outspokenness drew criticism both inside and outside the company, including threats of boycotts. The tweets came when Levi's was using public health guidance to manage protocols across hundreds of stores and in distribution centers.

"But Ms. Sey said she was speaking as a concerned mother, not a corporate executive. She also noted that Levi's—which has been vocal about hot-button issues like gun control—had not previously complained when she posted on social media in support of Democratic politicians like Senator Elizabeth Warren or more liberal causes.

"Levi's disputes Ms. Sey's account of events, including her claims that she was punished because her views veered from "left-leaning orthodoxy" and that she walked away from a $1 million severance package in order to be able speak freely about the company."

Levi Strauss: She Quit

"Levi's said Ms. Sey had quit rather than negotiate an exit package, which would have contained a nondisclosure agreement. It 'would not contain a prohibition on the executive speaking out about matters of public interest such as school closures or on engaging in any legally protected speech,'" Kelly McGinnis, the senior vice president of corporate affairs at Levi's, said in a statement.

Companies Are Increasingly Concerned

Kia Roberts, principal and founder of Triangle Investigations, observed that "Companies both large and small are increasingly concerned about their public-facing persona and do the work of brand management to ensure that the way that their employees behave is consistent with the stated goals and values of the organization.

"When employees, via social media, use speech and language that can be offensive [for] any reason—whether racist, sexist, anti-LGBTQ+, anti-immigrant—it can cause damage to a company's brand reputation.

No Issues With Workers Who Express Opinions

Some companies make it clear that they do not care what their employees say or how or where they express their opinions

Catherine van Vonno is the president and CEO of virtual staffing company 20Four7VA. She said, "Our company believes in freedom of speech. This is why we encourage our staff and [virtual assistants] to express their opinions and perspectives on various issues freely, without fear.

"As long as they are able to work harmoniously with our partner clients within the allotted work hours, we have no issues with them expressing their political and social stands on their social media accounts.

"Along with the freedom to voice out their opinions, we remind our growing team of their responsibility to promote the truth and educate others of any fake news or misleading information that may be spread online. It is our legal and ethical responsibility to uphold what is right and what is humane," she commented.

Advice For Business Leaders

National Labor Relations Act

Jessica Childress, the managing attorney of the Childress Law Firm, noted that, "Employers who have policies limiting employee speech on social media must be careful not to run afoul of the National Labor Relations Act (NLRA).

"The NLRA allows employees to participate in protected concerted activity, meaning that employees have the right to discuss work-related issues with their co-workers in any forum, including on social media.

"Broad prohibitions on employee speech, which limit what employees are permitted to say about work conditions, risk employer liability under the NLRA," she counseled.

Regulating The Speech Of Employees

According to labor and employment law firm Fisher Phillips, "… under both state and federal law, employers are permitted to regulate the speech of their employees under a wide variety of circumstances. Critically, those rights extend not only to employee speech at work but also to employee speech away from work. 

Limitations

The law firm's website noted, "An employer's rights are not without limit, however. Under certain circumstances, employees may have the right to express their views on certain subjects even if doing so causes harm to their employer or fellow employees.

"Further, even where an employer possesses the right to limit the speech of its employees, it may find itself liable for violating non-speech-related laws if it exercises those rights in an improper or discriminatory manner."

"For these reasons, [it] is critical for all employers to know what speech-related rights they possess, what limits on those rights exist and how they should exercise (or not exercise) their own rights in response to the actions of their employees."

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Edward Segal is a crisis management expert, consultant and the bestselling author of the award-winning Crisis Ahead: 101 Ways to Prepare for and Bounce Back from Disasters, Scandals, and Other Emergencies (Nicholas Brealey). Order the book at https://www.amazon.com/gp/product/B0827JK83Q/ref=dbs_a_def_rwt_bibl_vppi_i0

Segal is a Leadership Strategy Senior Contributor for Forbes.com where he covers crisis-related news, topics and issues. Read his recent articles at https://www.forbes.com/sites/edwardsegal/?sh=3c1da3e568c5.

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