The removal of rapper Macklemore from future dates of Ed Sheeran’s concert tour after he made pro-Palestinian remarks at MetLife Stadium raises a broader employment-law question: What should a private employer consider when an employee’s public speech creates legal, contractual, and public relations concerns?
As reported by Reuters, tour promoter Messina Touring Group said that venue owners on upcoming tour dates had advised that they would not permit concerts with Macklemore on the lineup.
The relationships among performers, promoters, and venue owners or operators are not necessarily conventional employer-employee relationships, and the specific contractual arrangements governing the tour have not been publicly reported in detail. Still, the controversy raises issues that can arise in any workplace when an employee’s public comments put pressure on an employer to respond.
There are three principal considerations: What does applicable law permit or protect? What do the relevant contracts provide? And what are the potential public relations and business consequences of acting or declining to act?
Key Takeaways
- The First Amendment generally does not protect private-sector employees from employment consequences based on their public speech, but other federal, state, and local laws may protect particular speech or activities.
- Employment agreements, collective bargaining agreements, workplace policies, and contracts with customers and other third parties may affect what an employer can or must do.
- Even when action is legally and contractually permissible, an employer should consider the potential consequences for employees, customers, business relationships, and its reputation.
Applicable Law
Employees of private companies generally cannot rely on the First Amendment as protection against employment consequences for their public statements. The First Amendment restricts government action, subject to narrow exceptions, and different rules apply to public employers.
But the First Amendment is only the starting point.
Depending on the circumstances and jurisdiction, federal, state, or local laws may protect certain political activity, lawful off-duty conduct, protected concerted activity concerning wages or working conditions, complaints about discrimination or other unlawful conduct, or other protected activity. Those protections, and their exceptions, vary significantly by jurisdiction. The employee’s work location and the nature of the speech can therefore make a difference.
Outside pressure does not change that analysis. A customer, client, sponsor, or other business partner may strongly object to an employee’s speech, but that objection does not eliminate whatever legal protections the employee may have.
Contracts
Contracts can impose additional limits. An employment agreement may restrict the circumstances in which an employee can be terminated or disciplined. A collective bargaining agreement may require just cause. Other agreements may address conduct or establish procedures that must be followed before action can be taken.
Workplace policies can matter too. If discipline is based on a code of conduct, social-media policy, or similar rule, the employer should determine whether the policy actually covers the conduct and whether it has been applied consistently in comparable situations.
The issue becomes more complicated when the pressure comes from outside the employment relationship. Employers may have agreements with customers, clients, venue owners or operators, sponsors, vendors, licensors, and other business partners. Those agreements may give a third party certain rights, impose obligations on the employer, or leave the decision to the employer’s discretion.
Public Relations
Even if an employer concludes that it legally and contractually can act, it still must decide whether it should.
Disciplining an employee may satisfy a customer, business partner, or other constituency demanding action. But it can also draw more attention to a controversy, affect employee morale, strain other business relationships, or lead to criticism that the employer is penalizing a particular viewpoint.
Doing nothing carries risks of its own. Coworkers, customers, clients, or other stakeholders may believe that the employer is ignoring speech that has affected the workplace or an important business relationship.
The employee’s role can make a difference. Comments by someone who regularly represents the organization to clients or the public may raise different concerns from comments by an employee whose position has little or no external component.
Consistency matters as well. Before taking action based on controversial speech, an employer should consider how it has handled comparable conduct in the past. Treating similar situations differently can create employee-relations concerns and, in some circumstances, legal risk.
Putting It Together
Controversies involving employee speech rarely turn on “free speech” alone. Applicable law, contractual obligations, and public relations concerns may point in different directions. Looking at each separately can help an employer make a more deliberate and defensible decision when speech outside the workplace becomes a business problem. If you have questions about employee speech, workplace policies, employment agreements, or related employment issues, please contact the author or your attorney at McCarter & English LLP.