Good Morning, HR

In episode 179, Coffey talks with Kacey Riccomini about managing political and social speech in the workplace in a time of heightened political division and social tension.  (HRCI business credit)

They discuss legal protections for political speech under federal and California state laws; when political speech becomes discriminatory or creates a hostile work environment; the limitations of First Amendment protections in private workplaces; employer rights and responsibilities regarding employee social media use; how to handle disruptive political discussions in the workplace; the challenges of managing speech in remote work environments; the importance of having clear workplace policies around respectful communication; the definition and handling of retaliation claims; the risks and considerations around employer monitoring of employee social media.

Good Morning, HR is brought to you by Imperative—Bulletproof Background Checks. For more information about our commitment to quality and excellent customer service, visit us at https://imperativeinfo.com.

If you are an HRCI or SHRM-certified professional, this episode of Good Morning, HR has been pre-approved for half a recertification credit (HRCI business credit). To obtain the recertification information for this episode, visit https://goodmorninghr.com.

About our Guest:

A dynamic litigator with a breadth of experience, Kacey creates and executes effective litigation strategies to address a variety of complex disputes. She advises a wide range of clients, from members of Fortune 500 and large privately-held companies to smaller businesses.

Aggressive, focused, and methodical in her approach, Kacey leads complex litigation that is practical and consistent with her clients' business goals and strategic objectives. She represents clients in state, federal and appellate courts as well as before various dispute resolution agencies. She has prevailed in state and federal courts at all stages of litigation, including trial, and has successfully arbitrated and mediated numerous cases before the AAA and other dispute resolution agencies.

Kacey is a talented writer who professionally publishes articles on various legal topics. She also serves on the editorial boards for two publications, Bender's Labor & Employment Bulletin and Bender's California Labor & Employment Bulletin.

Prior to joining Thompson Coburn, Kacey was an Associate at Chapman, Glucksman, Dean, Roeb & Barger, where her practice focused on professional liability for accountants and business managers, construction defect litigation for builders and developers, and insurance defense.

Kacey Riccomini can be reached at 
https://www.thompsoncoburn.com 
https://www.linkedin.com/in/kacey-riccomini-2220192b

About Mike Coffey:

Mike Coffey is an entrepreneur, licensed private investigator, business strategist, HR consultant, and registered yoga teacher.

In 1999, he founded Imperative, a background investigations and due diligence firm helping risk-averse clients make well-informed decisions about the people they involve in their business.

Imperative delivers in-depth employment background investigations, know-your-customer and anti-money laundering compliance, and due diligence investigations to more than 300 risk-averse corporate clients across the US, and, through its PFC Caregiver & Household Screening brand, many more private estates, family offices, and personal service agencies.

Imperative has been named the Texas Association of Business’ small business of the year and is accredited by the Professional Background Screening Association.

Mike shares his insight from 25 years of HR-entrepreneurship on the Good Morning, HR podcast, where each week he talks to business leaders about bringing people together to create value for customers, shareholders, and community.

Mike has been recognized as an Entrepreneur of Excellence by FW, Inc. and has twice been recognized as the North Texas HR Professional of the Year.

Mike is a member of the Fort Worth chapter of the Entrepreneurs’ Organization and is a volunteer leader with the SHRM Texas State Council and the Fort Worth Chamber of Commerce.

Mike is a certified Senior Professional in Human Resources (SPHR) through the HR Certification Institute and a SHRM Senior Certified Professional (SHRM-SCP). He is also a Yoga Alliance registered yoga teacher (RYT-200).

Mike and his very patient wife of 27 years are empty nesters in Fort Worth.

Learning Objectives:
  1. Develop appropriate workplace policies that protect both employee rights and business interests while maintaining compliance with federal and state regulations regarding political and social speech
  2. Implement effective procedures for addressing potentially discriminatory or disruptive workplace speech while avoiding retaliation claims
  3. Distinguish between protected speech that requires employer action and general complaints that fall outside the scope of workplace regulations

What is Good Morning, HR?

HR entrepreneur Mike Coffey, SPHR, SHRM-SCP engages business thought leaders about the strategic, psychological, legal, and practical implications of bringing people together to create value for shareholders, customers, and the community. As an HR consultant, mentor to first-stage businesses through EO’s Accelerator program, and owner of Imperative—Bulletproof Background Screening, Mike is passionate about helping other professionals improve how they recruit, select, and manage their people. Most thirty-minute episodes of Good Morning, HR will be eligible for half a recertification credit for both HRCI and SHRM-certified professionals. Mike is a member of Entrepreneurs Organization (EO) Fort Worth and active with the Texas Association of Business, the Fort Worth Chamber, and Texas SHRM.

Kacey Riccomini:

Even if, it doesn't end up being protected conduct of some sort, it's still better to be safe than sorry and involve involve HR. And if the issue is not clear, you know, get outside legal counsel involved to analyze it too just to make sure that you're compliant, you're not running afoul of any laws and getting into sticky situations.

Mike Coffey:

Good morning, HR. I'm Mike Coffey, president of Imperative, bulletproof background checks with fast and friendly service. And this is the podcast where I talk to business leaders about bringing people together to create value for shareholders, customers, and the community. Please follow rate and review Good Morning HR wherever you get your podcasts. You can also find us on Facebook, Instagram, YouTube, TikTok, or at good morning hr.com.

Mike Coffey:

The most important election of our lifetime is now more than a month behind us, and we're just a few weeks away from Donald Trump's second inauguration as president. And, it will not surprise you, gentle listeners, to hear that the US population is deeply divided on a wide range of issues. From the efficacy of vaccines to whether billionaires should even be allowed to exist, many people seem to have a heightened estimation of their own opinions on these and other political and social issues. And, where are all of these people with diverse opinions often meeting? Yes.

Mike Coffey:

In the workplace. Joining me today to discuss challenges employers face in managing political and social speech in the workplace, especially in the post election landscape, is Casey Riccamine. Casey is a labor and employment attorney with the Los Angeles office of the national law firm, Thompson Coburn. Casey represents clients in state, federal, and appellate courts, as well as before various dispute resolution agencies. She is also a prolific writer on various legal topics and serves on the editorial boards for Bender's Labor and Employment Bulletin and Bender's California Labor and Employment Bulletin.

Mike Coffey:

Thanks for joining me today, Casey.

Kacey Riccomini:

Thanks, Mike. It's good to be here.

Mike Coffey:

So, obviously, people have strong opinions about a lot of issues. You know, good for them, but what are the situations where those opinions become a concern for their employers?

Kacey Riccomini:

You know, it's really where an employee takes something that maybe a political candidate says, or an opinion, or position that has been kind of incendiary for the general public brings it into the workplace, and those kind of statements, run afoul of other laws. So, you know, there's title 7 or, in California, there's FEHA that protects employees on a variety of basis of these, protected characteristics, and some statements that may be made in the political realm wouldn't be appropriate at work, and that's where you run into these sticky issues.

Mike Coffey:

So let's talk about you're in California and, you know, we've got listeners all over, but often California is the bellwether of where things are going, or maybe it's the, you know, depending on the other side of it. It's the thing you need to watch out for in your own legislature to make sure that you stop them from doing that. So talk about what California specific protections are, then we'll talk about the national ones.

Kacey Riccomini:

Right. So in California, there's a variety of protections as I was referring to before. There's the Fair Employment and Housing Act or FEHA as it's called, and that protects people on a variety of basis from discrimination, harassment, or retaliation based on things like race, national origin, gender, gender identity, disability status, all kinds of things there. And then when it comes to, political specific, protections, there are some labor code sections that come into this that, you know, prevent employers from stopping employees from participating in politics or becoming candidates themselves or trying to control, employee affiliations or political activities. And, you know, employees also have the right to take time off to vote in California.

Kacey Riccomini:

So there's a variety of, protections that California employees have, when it comes to politics or political speech in the workplace.

Mike Coffey:

So what's an example of under FEHA or or some of the other rules regulations of California of something that somebody might repeat that a political candidate said or something that's part of a party platform or just maybe a widely accepted, you know, or, you know, popular political position at least with some part of the population that somebody might express that would wouldn't necessarily violate title 7 or be, you know, hostile work environment under federal law, but under the state law might might cause a problem for an employer. Can you think of anything like that? Is or is is it just redundant regulation?

Kacey Riccomini:

They're largely redundant. There are some, differences. California protects, more classes and categories than federal law does generally speaking, but you I mean, you could have really a variety of of issues that, would run afoul of California or federal law if someone is repeating certain statements. You know, there's from a few years ago, there was a whole, well, quite a bit of drama surrounding the perceived locker room talk and what was and was not acceptable, with some people, you know, contending that certain statements were just fine. But if they find their way into the workplace, it can lead to a hostile work environment.

Kacey Riccomini:

It can lead to claims of gender discrimination. And so, you know, if that is making its way into the workplace, that's something that the employer has to really put a stop to, as soon as it comes to their attention, because you're you're looking at title 7 or or fee protections, coming in.

Mike Coffey:

One of the top hot issues of the last 4 years and the last election, was abortion. Mhmm. And people have very strong positions on on that topic, some religiously based, so you've got religious protections that people are concerned about, but a lot of people see that as a gender based conversation. Are those the kind of, you know, you know, advocacy or just, you know, the, you know, whether it's a Planned Parenthood or right to life or whatever, you know, flag or badge. We need to quit putting flags on people's desks.

Mike Coffey:

I think that would make a lot of problems go away. But, you know, that kind of signaling, are those would those kind of things create unique issues for an employer in California specifically or or maybe under the federal laws?

Kacey Riccomini:

So in California specifically, it it is more difficult employees. You know, they do have the right to advocate for certain political positions. It doesn't mean that they can, you know, do it all the time or during working hours when they're supposed to be productive, but they do have a right to be free from interference there. So there are certainly some cases that have found, you know, for example, that employees were they have the right or ability to, advocate for persons with disabilities or to advocate for LGBTQ issues. So when it comes to, you know, a dispute over abortion and whether there should be regulations and to what extent and where those come from, yeah, that can definitely create a problem for, employers if the employees are not being, let's say, respectful in their discussions with one another and it's leading to, issues or poor statements being made.

Kacey Riccomini:

That situation is one that, you know, can't continue, does have to be addressed, but largely, you know, the the goal is really that people should be able to respectfully disagree if they are going to have a discussion or decide not to engage with it if it's not going to, you know, go anywhere positive.

Mike Coffey:

And so when it's a legal issue, I mean, you know, when it's so you know this is, you know, this person exists in this class and they're protected and certainly if anybody in in leadership or management who, you know, is is specifically and and strongly, you know, prohibited from engaging in things that are discriminatory. But then their peers are also having those same issues. Right? You know, creating those hostile work environments and management's got to address that. But what about that speech where it's not in a protected class, but it's just disruptive to the workplace.

Mike Coffey:

So you know I'm let's just say that you know employee a is very pro candidate a and candidate B is, you know, and other employees are supporting them, and they just want to, you know, advocate and they get angry and it's it gets disruptive because now we're we're acting like we're online on social media instead of in the workplace. And, I mean, let's face face it. The reason I'm paying you, employee, is to get the job done, not to cause disruption in the workplace and cost me turnover or, you know, make us less harmonious and less productive.

Kacey Riccomini:

Those issues can definitely come up. I am a little curious in your scenario if the favor for the particular candidate is based on anything that might be connected to the workplace. So at the federal level, there are some protections from, for example, the National Labor Relations Act, that protect employees who are engaged in concerted activity. It has to be connected some workplace issue, but let's say they're saying that they are really pro candidate, whoever, and they're Pro

Mike Coffey:

union or Yeah.

Kacey Riccomini:

They're because they're pro union or they think they're gonna get higher wages or something. That, you know, could be protected, so it would be a good idea if, you know, that issue is popping up to talk to employment council before taking any action just to make sure you're not violating any laws. But if that's not the issue and it's just I I like this candidate and, you know, it's, all other employees are joining in. It's gonna depend on the context, but if there's someone who's being, you know, another employee being, let's say, targeted or ridiculed, that might be a situation where HR has to step in and talk to everybody about, you know, behaving respectfully in a workplace, how you talk to people, and, you know, to really just knock it off. If you can't be respectful about the discussion, you, you know, don't need to have it with that particular person.

Kacey Riccomini:

But, you know, it's really gonna depend on the circumstances. It is a good idea whenever these kind of issues pop up to involve HR, and to reach out to, Labor and Employment Council, because it again, you know, with these hypotheticals, it's hard to anticipate every issue that there might be, and it's better safe than sorry.

Mike Coffey:

Well, we hear that a lot that, you know, my free speech rights. Right? I've got free speech with this America. I can say what I wanna say. Explain the where on a private employer, we can talk about public employers in a minute, but in a private employer, where does free speech really become, you know, especially first amendment kind of free speech become an issue?

Kacey Riccomini:

Well, the first amendment, and I think I understand what you're getting at. The first amendment really only protects people from the government. So private employer isn't necessarily subject to restrictions, based on the first amendment when it comes to employee speech and whether you know, when it's a political issue and it may run afoul of other laws. So that doesn't the first amendment, doesn't really prevent an employer from, let's say, enforcing title 7 protections or protections under FEHA. And, I believe, there's some case law on that I can get you if you're interested, but, I think that'd be a snooze fest otherwise.

Mike Coffey:

And then there are like you said title set. I mean when there are cases where people are specifically prohibited from saying certain things in certain ways that would marginalize or cause injury of some sort to somebody because of their their status in a protected class, you know, like we talked about. Now if they're a public employer, state government or federal government employer or even local city, you know, any government entity, the first amendment plays differently. Correct?

Kacey Riccomini:

It does. Yeah.

Mike Coffey:

What's the 32nd, you know, instructions for public employers when when somebody says, I've got a right to say this, you know, in you know, because I've got the first amendment.

Kacey Riccomini:

Oh, you know, I don't know that I can get that down to a 30¢ by it. No. I mean, it's really I would recommend if if there's an employee who's pushing back whether it's public or private, and they're saying, you know, I think I have a right to to say this, get legal and and HR involved and and analyze the issue. I mean, it really is something to be careful with.

Mike Coffey:

And then outside of the workplace, whether it's an employee who shows up at a city council meeting and throws a big fit and on, you know, on local TV, and, they're associated with the employer somehow maybe through that or maybe not, or they're a part of a public protest and it just happens to be them who's on the news, or maybe just some crazy hot post that they put on social media. At what point can an employer be interested and involved in protect you know, in addressing what the employee posted or said or how they conducted themselves publicly? I mean, a good example would be January 6th of 20, 2021, I guess, the inauguration. I mean, a lot of people lost their jobs because they were on the media, you know, at the protest or when the in the capitol or whatever. So at what point is it really an employer concern?

Kacey Riccomini:

It's I mean, it's going to depend on the issue. So, if you're raising the January 6th example, if an employer is seeing an employee, let's say, trespassing onto Capitol grounds where they don't have permission to be there or they're saying or doing something that may be harmful for the business or violate other laws, then the employer is gonna have to, you know, do an analysis with HR, their legal counsel to determine whether some action should be taken. And there may be circumstances where it's appropriate. But, you know, without the specific case in front of me, it's a little hard to comment on that. But there there are circumstances where that can be appropriate certainly, and there are some cases, in fact, where outside of the, workplace, employees are engaged in, let's say, political or other speech, maybe it's online, and if they're directing it at another employee or it's being brought to the employer's attention and it's something that might impact the workplace, there are some cases that have found that if employer does not respond, to some of these, issues and try to put a stop to, let's say, harassing behavior from one employee to another even if it occurs on social media, then that can pose some real, legal problems for the employer.

Mike Coffey:

And what about the employer just wants to protect their reputation or an employer who's publicly advocating against the employer's interests?

Kacey Riccomini:

That one's a sticky issue and there because there's a patchwork of state laws that may apply. I'd actually have to say you you really wanna run that one by counsel before, making a decision. Maybe that it's appropriate, you know, if the employee really is damaging, the business reputation, then some some actions may be, appropriate. But given that California has some pretty robust protections, and it's not the only state with protections, but they they vary state by state, that's, one where you should talk to counsel in that area and make sure that, you know, whatever decision you're, making is legally compliant, before moving forward.

Mike Coffey:

And let's take a quick break. Good morning. HR is brought to you by Imperative, bulletproof background checks with fast and friendly service. At Imperative, we have 3 core values. One of which is always act in the best interest of our client.

Mike Coffey:

To ensure we do that, we focus on keeping 3 promises. 1st, we choose our team's competencies over technology, AI, or algorithms. Our research and the information we provide our clients is always guided by our professional analyst, augmented by, but never substituted with technology. And second, because our processes are thorough, our compliance is strict, and our staff cares, our clients can fearlessly take action based on the information we provide. And finally, when the phone rings or the email chimes, our team answers and solves our client's issues immediately with fast and friendly service.

Mike Coffey:

These are our promises to our clients, and it would be an honor to extend them to you. You can learn more about how Imperative serves our clients at imperativeinfo.com. If you're an HRCI or SHRM certified professional, this episode of Good Morning HR has been preapproved for 1 half hour of recertification credit. To obtain the recertification information, visit good morning hr.com and click on research credits. Then select episode 179 and enter the keyword speech.

Mike Coffey:

That's s p e e c h. And if you're looking for even more recertification credit, check out the webinars page at imperativeinfo.com. And now back to my conversation with Casey Riccamine. So if we're gonna if we talk about discriminatory speech, and I want to have a, you know, a policy that says that it accomplishes the goals, whatever, you know, what should that policy say to protect the company, protect employees, and make sure we're legally compliant? What kind of things should there be in those policies or should an employer consider?

Kacey Riccomini:

When drafting social media or respectful workplace policies? Yeah. Yeah. It's generally fine to have language saying that, you know, we strive to have a protect or a, respectful workplace. You know, in our discussions, there are certain behaviors that aren't allowed.

Kacey Riccomini:

So, oftentimes these policies will have, you know, you can't engage in intimidating behavior or threatening behavior, and that tends to be fine. But the NLRB, National Labor Relations Board, has some recent decisions where, some of these employer policies were scrutinized, and if they're not, sometimes if they're not specific enough or if the policy might be read to discourage protected conduct, then that policy might be struck down. That might be a problem. So it is a good idea to run those policies, by counsel, have those checked periodically, if there are any updates. And usually, employers will have respectful workplace and anti discrimination policies in place.

Kacey Riccomini:

They certainly should. It's a best practice. So, but it's also a good idea to have the attorneys that you work with on a regular basis just review them on occasion to make sure that if there are any updates such as, the NLRB Stericycle case, the one I'm referring to now when it comes to, employer policies and the scrutiny that applies to those, and it's a good idea to to run it by counsel. And that may change, with the new administration where previously the NLRB was a bit more employee friendly. And with the new administration, you know, it's expected to be more employer friendly, so there may be some shifts.

Kacey Riccomini:

And it's just a a good idea to to have someone, check and, you know, keep up to date.

Mike Coffey:

And so we have policies. What kind of training ought we have to to make these things happen so that we don't have to engage the policies, you know, more, you know, remedial effects.

Kacey Riccomini:

I mean, generally speaking, you wanna have your, anti discrimination, anti harassment training, at regular intervals, both for frontline employees, managers, HR. And you'll have, you know, hopefully more detailed training, for people who, you know, really need to apply these, protections on a regular basis. So that general training, is is a good idea to have in place. When it comes to whether there's the difference between whether it's political speech or something else, it's going to depend on the employer. If they're a public employer, that might need to be some more specific or different training compared to a private employer, and, you know, with employer, the the focus is really gonna need to be on what is the behavior that is being addressed, you know, what is the problem?

Kacey Riccomini:

Does it run afoul of these laws? You know, how do we address it? So, you know, the focus really isn't, oh, is it a political statement or which party, you know, does it favor or not? It's what is the behavior? Are we looking at a potential violation of, FEHA or Title 7?

Kacey Riccomini:

You know, and how do we address this and move forward?

Mike Coffey:

And so, you know, employees aren't the only stakeholder. Companies have customers, shareholders, regulators. Kind of touched on some of the regulators. How do you walk that fine line between let's assume nothing's, you know, overtly illegal with what's being, you know, what's being expressed, but we need to walk that fine line because I've got public perception. I've got customers who might care about, you know, you know, we've seen that where companies, and even individual support for institutions and stuff have changed because of those those companies' political stances that they've they've chosen to take.

Mike Coffey:

How do those considerations play into how a company ought to respond to speech?

Kacey Riccomini:

I I wouldn't say that they do directly. So, again, the the real question here is what is the conduct that is the concern? Does it violate any laws, and how do we address it? It's not, you know, we've taken, you know, some position publicly, and and that might be a good or bad PR move. That's not necessarily a you know, reasonable minds may disagree on that one.

Kacey Riccomini:

But when it does come to something that is happening in the workplace, that's when it it really has to kick into gear and and be addressed.

Mike Coffey:

And the workplace situations though, sometime we've seen those situations where they become public. Right? So the employer took this this, you know, took this action based on this employee's conduct, and it was conduct that outside of the workplace may have been perfectly legal, but now the employer's taking this position and they're getting blowback from one advocacy group or the other, and now they're getting their names dragged through the mud, on social media. Is there a way just to say, just don't be a jerk outside of the office? I mean, you know, is there, you know, how can is there a way for an employer to have a policy that just says, look, we just don't want drama?

Kacey Riccomini:

I mean, I I don't think that that's a workable policy as much as we don't like drama. Unfortunately, we do wind up having to deal with a variety of issues that, cross our desk that, you know, we'd rather not And, you know, workplaces are not in a vacuum. They're not immune from the effects of the real world, and, unfortunately, things aren't black and white. They're they can be sticky to deal with. But something as broad as don't cause drama, I don't think it's gonna be That's

Mike Coffey:

not good enough.

Kacey Riccomini:

I don't think it's gonna be terribly enforceable.

Mike Coffey:

So 5 years ago, it's hard to believe it's been 5 years. I mean, most of us were all in the office all the time, and now we've got remote work and hybrid situations With people working out of their living rooms or their home offices, how has that changed employers' relationship to employee speech? And how you know, does that make it more difficult to monitor? Are there more instances? Are there more opportunities for or fewer opportunities maybe for employers employees, to bring offense or is it just just a different way of communicating altogether?

Kacey Riccomini:

You know, it's mostly a different way of communicating, but when people do work remotely, there tends to be, you know, a bit less of the interactions you would have in passing with people, the water cooler talk. So there's a little less interaction, and a lot of it can be tracked because it's by, you know, a Zoom meeting or by invitation. Whereas in the workplace, there's a lot of these small interactions that, otherwise would go unnoticed.

Mike Coffey:

Is there in in our our conduct, our non harassment policies, do we need to have specific policies about electronic communication or is just generally don't be a jerk and and, you know, and follow these laws and do these things, you know, respect these, these classes? Is that enough or do we need to really address some of those channels that that we're using now that maybe we weren't using a few years ago?

Kacey Riccomini:

I mean, I don't think you need to go into a ton of detail about the method of communication. You know, there doesn't need to be a separate policy that says, oh, these laws also apply even if you're texting or, you know, sending things by email. That, you know, is something that can be an example in the regular policy, but I don't think it needs to be parsed out and have, loads of different policies, when you have a anti discrimination, anti harassment, and anti retaliation policy already in place.

Mike Coffey:

And let's talk about retaliation because that's a topic that everything is retaliation to that employee who just suffered some adverse action. Right? And, whether it's, you know, in some and often correlation is not causation, but, you know, everybody feels like they've been retaliated against. What really would qualify? Let's just set out what retaliation under a legal term, under a legal sense, really means when we're taking any employee action.

Mike Coffey:

We hear that term a lot. So

Kacey Riccomini:

You know, I mean the basics of retaliation are that someone engaged in protected conduct, an employee engaged in protected conduct, and that they're in some way effectively being punished for it or discouraged, from engaging in that protected conduct. So, you know, you could have a circumstance where an employee sees that something where they think an employ another employee is being harassed and they go report it. And then in their view, the supervisor that they reported hasn't been as nice to them or maybe, you know, has more cutting comments or something. And they may be reporting retaliation, for something like that. And, you know, HR would, you know, hopefully look into and, address those, issues.

Kacey Riccomini:

But those can pop up really at any time, anytime there's a complaint of any sort.

Mike Coffey:

Yeah. And and we see a lot of them where employees are saying it's retaliation, and it may well be retaliation, but there's no protected activity to start with. So it's not under that league, you know, the the, the employee doesn't like the same football team as the manager does. I mean, who knows? But you know, those kind of things and they say, well, that's retaliation.

Mike Coffey:

Or they they complained to their management, not to one another about, you know, they didn't think the the pay raises were sufficient this year or the company's made the stupid decision, and it's directly to management. And so MLRA is hopefully, you know, not engaged there, but those those things come up as retaliation. And so those should probably still when you ever hear you hear the word retaliation, they should still go to HR. Right? Let's let HR really make the be the arbiters of whether this is something we need to be worried about.

Kacey Riccomini:

Yeah. Even if, it doesn't end up being protected conduct of some sort, it's still better to be safe than sorry and involve involve HR. And if the issue is not clear, you know, get outside legal counsel involved to analyze it too just to make sure that you're compliant. You're not running afoul of any laws and getting into sticky situations. It's really just better safe than sorry even if the situation, you know, does seem like it's pretty innocuous and maybe there's some hurt feelings over something that is not protected, it's still better for HR to be at least involved at the outset.

Mike Coffey:

One last, can of worms. What about company monitoring of employee social media? So it's not just the, hey, this, you know, employees, you know, an employee comes and says, hey, this guy posted this on his Facebook and it's offensive to me, But actively monitoring social media, looking at post or specifically looking, you know, maybe even using AI tools to to monitor for specific kinds of of conduct, Where's the line on that? Or are you seeing many employers even interested in doing that?

Kacey Riccomini:

I'm not really seeing employers interested in in monitoring their employees' social media. You know, it would take a lot of time to do, and I guess there there could be AI tools that could make it faster, but it's just tends to be a can of worms. You know, there could, on employee social media, there could be a variety of things that they post that they think are more private than they actually are, and it could be disclosures that indicate the employee is part of a protected class that maybe people didn't know about. And so, you know, with that kind of thing, it's it's better to be careful and not, you know, misuse what might be learned from social media. I wouldn't necessarily recommend monitoring social media for employees, but, you know, it could lead to claims of discrimination.

Kacey Riccomini:

And also in California, there's some specific protections, that employees have from employers getting into their social media. There are some limitations to those protections as well, but, for example, employers in California, they can't ask for an employer and applicant's personal login credentials to social media or other websites, or ask the employee to pull up their social media so that the employer can basically shoulder surf and, look at what they're posting and can't really retaliate against employees who are saying no, thank you, to a request like that. But there are some limitations. So let's say another employee reports to HR that they're being harassed through social media by a couple other employees. They're saying some rude things, something along that, along those lines.

Kacey Riccomini:

In those circumstances, it, you know, would be okay for HR to say, well, can I take a look at these posts? Can you show me? And so it's it's okay, you know, in the context of an investigation to request information like that, but that's, you know, one of the limited exceptions. So it's generally best to stay away from employee social media, unless, you know, something is brought to your attention or pops up otherwise. It's just, tends to be a can of worms, at least in California.

Mike Coffey:

Yeah. Well and and just how much how many cans or, you know, how many headaches do you really wanna invite into into your employee relations issues.

Kacey Riccomini:

But Yeah.

Mike Coffey:

The but when that employee comes and says, this person's posted something that isn't directed to anybody, but I just find it really offensive. What how should it does that instigate an HR investigation every time? Or is it just show me what it is, and okay. Yeah. That's nothing that we're gonna get involved with.

Mike Coffey:

We don't, you know, we don't care that they think, you know, dog fighting ought to be legal or whatever, you know, whatever their or that vaccines, you know, cause people to grow 3 ears or whatever it is. Is it okay for for HR to say that's not, you know, not my circus, not my monkeys when it comes to these things that aren't protected affecting protected classes or a direct addressed to specific people in the company?

Kacey Riccomini:

I mean, when a complaint is brought up about a a post, it's not a bad idea to see what it is the employee is referring to and be able to make the determination of whether it's a problem or not and whether you have to do anything or not. But no. I mean, HR doesn't need to get, involved in in every little possible thing that an employee might take offense to. You know, there are plenty of things that offend people on a daily basis that have really no legal recourse. They're just part of being, you know, part of a society where we don't like every single thing that happens.

Kacey Riccomini:

It's really the issue is when statements might statements or conduct might run afoul of other laws like Title 7, FEHA, the Crown Act. You know, there are a lot of protections out there to be mindful of, but not every perceived slight is something that needs to be acted on.

Mike Coffey:

There you go. Well, let's wrap it up on that. Thank you so much for your time. Thanks for joining me, Casey.

Kacey Riccomini:

Yeah. Thanks, Mike. Pleasure to be here.

Mike Coffey:

And thank you for listening. You can comment on this episode or search our previous episodes at goodmorninghr.com or on Facebook, Instagram, TikTok, or YouTube. And don't forget to follow us wherever you get your podcast. Rob Upchurch is our technical producer, and you can reach him at robmakespods.com. And thank you to Imperative's marketing coordinator, Mary Anne Hernandez, keeps the trains running on time.

Mike Coffey:

And I'm Mike Coffey. As always, don't hesitate to reach out if I can be of service to you personally or professionally. I'll see you next week and until then, be well, do good, and keep your chin up.