How should HR handle employee social media posts on the Israel-Hamas war?

The Israel-Hamas war is leading to all kinds of tension around the globe. At one end is discomfort and difficult, maybe much-needed, conversations. 

At the other end of the spectrum is violence: In the U.S., Jewish individuals have been verbally harassed or physically assaulted for their identity. Three students of Palestinian descent were shot in Vermont in late November. In the month prior, a 6-year-old Palestinian American boy was killed and his mother seriously injured in Illinois. 

Combined with a recent slew of rescinded job offers and forced resignations, the effect of this climate on workers raises questions about inclusion, belonging, autonomy and self-expression. What can business leaders do? HR Dive spoke to an employment lawyer regarding best practices during this tense time.

Recognize the compliance angle

Hiring and firing based on values, particularly with regard to the Israel-Hamas war, is complex, Ruth Vafek, a lawyer in Berger Singerman’s Labor and Employment Law and Intellectual Property practice, told HR Dive

“What makes it particularly tricky is that, of course, U.S. employers are generally prohibited from discriminating based on characteristics [such as] race, religion, national origin. All or any of those three characteristics can be implicated in discussions about the Israel-Hamas conflict,” she said. 

Save everyone some headaches with ground rules

When devising guidelines, “the first rule is to discourage sweeping generalizations,” Vafek said. 

The second rule is to establish a tangible, well-outlined social media policy. Vafek said she suggests “at least contemplating” such strategies, she said. Employers should strive for a policy that’s both legally sound and practically effective.

Vafek acknowledged that a worker’s post about the war can complicate how the employer is perceived if that individual’s statements are misconstrued as a company stance. “Obviously, that could get the employer into trouble,” the attorney said, while noting that employers generally can’t control an employee’s private speech.

“Generally, employers have to be cognizant of the limits of their control of employees’ speech. Frequently, where the issues tend to happen, is when supervisors or managers maybe go a little overboard in trying to protect the employer,” the attorney said. “They’re not familiar with the full bounds of the law, and what they can and can’t do.” 

So beyond solidifying social media policy, HR could perhaps benefit from brushing up on the nuances of free speech and freedom of expression.

When should HR take action because of social media posts?

HR should consider several components of a situation when making a judgment call, Vafek said:

  • The context in which the statement was said, written or posted.
  • What policies are in place.
  • Whether the employee or potential employee is in breach of any of those policies.

Touching again on balance — between protecting business interests and allowing employees autonomy — Vafek suggested employers have social media policies that ask workers making posts about “potentially contentious topics” to issue a disclaimer. They should note that “they’re not speaking on behalf of the employer — just on behalf of an individual, themselves,” Vafek suggested.

Employers can suppress ‘free speech.’ But that doesn’t mean they should

Private employers are not bound by the First Amendment in the same way the government is; a private employer is “permitted to restrict employees’ speech in some ways,” Vafek said. “There are definitely some boundaries on that, but it’s an important distinction that I think people do tend to lose track of.”

That being said, Vafek said companies can allow discussions in the office about the Israel-Hamas war, while also creating an inclusive work environment. 

“Employers don’t have to reinvent the wheel here. There are a lot of resources out there on creating boundaries for civil discourse. For instance: Focusing on ideas or specifics, instead of personalities or making sweeping generalizations,” Vafek said.

An employee voicing disagreement with the actions of an individual or group is one thing, she said, but stereotyping and harassment are another.

The main takeaway is that anti-harassment and social media policies can serve as a workplace culture safety net. Ultimately, Vafek said, it’s about being responsible about what one says.