Money Rehab with Nicole Lapin - Can You Get Fired For Social Media Posts?

Episode Date: October 17, 2023

In a word: yes. We're seeing it play out right now. Multiple high-profile people have lost their jobs after making insensitive comments about Israel on social media. The internet wants to know: is that legal?! On Nicole's other podcast, Help Wanted, her and her cohost call up lawyer and workplace legal expert Peter Rahbar to help us understand our rights as employees... and employers. Never miss an episode and subscribe to Help Wanted here: https://link.chtbl.com/85RcT5bT

One of the most stressful periods of my life was when I was in credit card debt. I got to a point where I just knew that I had to get it under control for my financial future and also for my mental health. We've all hit a point where we've realized it was time to make some serious money moves. So take control of your finances by using a Chime checking account with features like no maintenance fees, fee-free overdraft up to $200, or getting paid up to two days early with direct deposit. Learn more at Chime.com slash MNN. When you check out Chime, you'll see that you can overdraft up to $200 with no fees. If you're an OG listener, you know about my infamous $35 overdraft fee that

I got from buying a $7 latte and how I am still very fired up about it. If I had Chime back then, that wouldn't even be a story. Make your fall finances a little greener by working toward your financial goals with Chime. Open your account in just two minutes at Chime.com slash MNN. That's Chime.com slash MNN. Chime. Feels like progress. Banking services and debit card provided by the Bancorp Bank N.A. or Stride Bank N.A. Members FDIC. SpotMe eligibility requirements and overdraft limits apply. Boosts are available to eligible Chime members enrolled in SpotMe and are subject to monthly limits. Terms and conditions apply. Go to Chime.com slash disclosures for details.

I love hosting on Airbnb. It's a great way to bring in some extra cash, but I totally get it that it might sound overwhelming to start or even too complicated if, say, you want to put your summer home in Maine on Airbnb, but you live full time in San Francisco and you can't go to Maine every time you need to change sheets for your guests or something like that. If thoughts like these have been holding you back, I have great news for you. Airbnb has launched a co-host network, which is a network of high quality local co-hosts with Airbnb experience that can take care of your home and your guests. Co-hosts can do what you don't have time for, like managing your

reservations, messaging your guests, giving support at the property, or even create your listing for you. I always want to line up a reservation for my house when I'm traveling for work, but sometimes I just don't get around to it because getting ready to travel always feels like a scramble, so I don't end up making time to make my house look guest-friendly. I guess that's the best way to put it. But I'm matching with a co-host so I can still make that extra cash while also making it easy on myself. Find a co-host at Airbnb.com slash host. I'm Nicole Lappin, the only financial expert you don't need a dictionary to understand. It's time for some money rehab. In the wake of the attacks on Israel, we've seen people fired from all sorts of industries for offensive commentary. A law student at NYU, an airline pilot in Canada, a basketball writer in

Philly, and a Playboy contributor. We did an episode on the legality of these firings on Help Wanted, Eminem's career podcast, that I co-host with Jason Pfeiffer, the editor-in-chief of Entrepreneur Magazine. And because this is a question I've been getting from some money rehabbers, I wanted to share this episode and these resources with you now. with you now. This is Help Wanted, the show that makes your work work for you. I'm Jason Pfeiffer, editor-in-chief of Entrepreneur Magazine. And I'm money expert Nicole Lappin. On Tuesdays, Jason and I answer the helpline and help callers solve their work problems. And on Thursdays, I give you one way to improve your work and build a career or company you love. And it starts now. So Jason, last week we called the helpline on

behalf of the entire internet to talk about the pros and cons of expressing opinions on world events on social media. Since then, we've seen a lot of people get fired from their jobs for expressing their opinions and also employers nervous to take action against employees who may do inflammatory things online or otherwise. So now we want to ask the internet's new question, is this legal? So to help us answer that, Jason, we're talking to Peter Rabar, a workplace legal expert. Peter, welcome to Help Wanted. Great to be here. Thanks for having me on. Thanks for coming.

And thanks for bringing, for people who can't see you, which is everyone but us, your trusty mug that says allegedly on it. Truly the greatest lawyer mug I've ever seen. All my responses, you know, I reserve the right to change them. As long as you don't send us a bill for these 45 minutes, we're good. That's true. We did not talk about billable hours before you started. We didn't sign an agreement before we did this. Shoot. How did that get passed? All right. So speaking of agreements, workplace agreements can be so tricky. And as someone who's

dealt with all the varieties of them over my career, I think the question now on the internet's mind comes from two sides, from an employer side and an employee side. So let's start with the employee side. Can I be terminated for a social media post that I do on a non-work related issue, including hot button topics, world events, things that are happening, like Allah, right now, Israel? Yeah. Well, right now is a really good time to be talking about this. And the short and simple answer is yes, you can be. Many people have this misplaced belief that there's a total right to freedom of speech at work. And while you may have a freedom of speech in your daily existence, that does not carry over into work. You do not have, if you work for a private

employer, a guaranteed freedom of speech. There are limits to what you could say. And these days, what you say on social media, whether it's a work social media platform or not, is certainly something an employer can consider in deciding on whether you should be disciplined or terminated, et cetera, for what you're saying. So the short answer is absolutely yes, you could be. Peter, I would love for you to expand upon this for a second because you used the term freedom of speech a couple of times. You are right. People have this expectation of freedom of speech. It is one of our American rights, but people throw this term around without really understanding it.

This drives me crazy all the time when people say, well, I have freedom of speech. It's a free country. But they don't understand that freedom of speech is a very specific thing. It means freedom from government stopping you from speaking. It doesn't mean freedom from literally anybody punishing you for speaking. Can you expand upon that so people understand it? Exactly. I mean, we've all heard a story about someone telling off their boss and getting fired, right? I mean, freedom of speech didn't protect them there. But they want to talk about politics, or they want to talk about nationalism, or they want to talk about wars, and they cling to freedom of speech. And yes, outside the workplace, if you're

participating in a rally, you have protection from government involvement, but that doesn't apply to your employer. They can make separate decisions based on what their policies are and what's best for their business and what your particular position is with the employer and what exposure they have. So there's a lot of factors that will go into the decision. But the top line is, yeah, absolutely. There is no absolute freedom of speech at work. And the one caveat is if you work for the government, and then there is a freedom of speech. And that's a totally different story. And that's not what I think we're going to focus on here today. Right. So if you say something inflammatory online and you get fired for it,

you actually still did have a protection of freedom of speech because you didn't get thrown in jail for it. And that's what freedom of speech is. But you don't have a right to stay at your employer regardless of what it is that you say. That's right. That's right. Even if you have a contract, Peter, I've had a bunch of television contracts in my careers that had morals clauses that were kind of nebulous. What if you just sign a pretty boilerplate generic and you're an outwill employee? Right. So most employees don't have contracts, right? I mean, it's rare these days that someone will have a contract. So let's look at those two buckets, right? I mean, it's rare these days that someone will have a

contract. So let's look at those two buckets, right? The with and without. So if you're an employee who doesn't have a contract, you're an at-will employee, which means the employer can fire you at any time and you can quit at any time. And it could be for any reason, except for an illegal reason, which usually revolves around discrimination. And just to unpack that, political perspective is not a protected class. No, it's not. Right. So yeah, you can't be discriminated against because you have an opinion. That's right. That's right. Now, there are some states that have laws, and New York is one of them, that protects participation in political activities.

So let's say your employer wanted to fire you for being a Republican in New York. They can't do that. And there's certain states where they can't do that. But your speech beyond that is something that's fair game for an employer. Now, to Nicole's point, if you sign a contract, you're not at will, right? You have this contract that lays out your employment terms. And particularly if there's a morals clause, which pretty much every contract I look at has one, they're going to say, we can fire you if you do these certain things, including saying something that's offensive, something that's embarrassing to the employer, something that interferes with our business, something that's offensive, something that's embarrassing to the employer, something that interferes with our business, something that interferes with our employees, something that may reveal our confidential information, et cetera. There's going to be broad protections for an

employer if there's a contract. That's why people hire lawyers like me to negotiate them. That's why companies constantly are revising them to make sure they're capturing every single scenario possible. So when Jason said your political views are not a protected class, what he's talking about is like, you can't be fired for being black or disabled or old. These are like other protected classes. And if you are, you could sue your employer. If you're fired in the case, let's say of like the 76ers writer who was fired for some inflammatory comments after the team put out a statement in support of Israel, could he sue that organization? There's two answers to that. So if the only thing at

issue is this statement, then no, he can't. He could try, but he's not going to succeed. The second answer is if there's a history of the company not firing people for making statements like that, and they fired him because of his race or his another protected characteristic and he can prove that, that's a different story. That's an uneven enforcement of policy. And that's something that employers really have to be mindful of. I would say most likely not knowing anything else, if it's just about the statement, he's going to be out of luck on a legal challenge to that. And frankly, I would assume he knew that before he did it. Can we just double click on what the protected classes are so it's super clear? I rattled off

a couple, but what am I missing? It depends where you are, because that list could be pretty long in New York, where I am in California, where you are. But basically, we're talking about when we talk about protected categories, race, age, national origin, gender, sex, disability status, pregnancy status, you know, in states like New York and California, sexual orientation, gender identity. What about religion? Religion? Absolutely.

Religion is one of them for sure. Absolutely. Religion's one of them for sure. Absolutely. So could somebody ostensibly argue that their post or their statement or them showing up at a rally was part of their religion and therefore have a basis for a lawsuit? That's a really interesting point. When you look at a situation like that, the employer is really going to be looking at, in most cases, and I hope before making this decision, what the employees said, not the fact that they were just there. Depending on the nature of the rally, there may be a lot of other questions about what type of rally it was and what they were asking for. I mean, we know

there are very positive rallies and there are some that are very destructive in their messages and what their participants are doing and asking for. But there will be examination of the statement itself. And if the employer is really focused on that, then I think they will have the protection they need. And they've been consistent enforcing these policies. So the employer would likely say in that situation, well, I didn't have a problem with your religion when I hired you.

And you've been working here for X number of years and you've been doing your job and getting raises and promotions, etc. But when you went to this rally and you said X and it got back to us and that is not conforming with our company values and has now caused this big business problem for us, et cetera. That's why we're doing this. Hopefully, that's the reason. But if it's something like the employer says, well, I didn't know you were Jewish, and then you showed up at this rally, and I don't want you working here anymore. Well, yeah, sure.

That would be a big problem for the employer. Right. But if you say, gas the Jews or something like that, they can say, well, that's not part of our company's values of exclusivity or peace or- We don't care what your religion is. That's not something we can accept no matter what religion you're a part of. And if your religion requires you to say that, then best of luck to you finding a job. I mean, I think the fear among some you're a part of. And if your religion requires you to say that, then best of luck to you finding a job. I mean, I think the fear among some smaller business owners, I think like Josh Harris at the Sixers doesn't give a fuck if anyone sues him, that would be a grounding error in his legal bills.

Mark Rowan at Apollo also doesn't care. But if you're running a smaller business and you have a lawsuit against you, even if it's not merited or it doesn't have basis, you still have to spend money to defend yourself. That's scary if you're running an organization that can't afford legal representation. Yeah, absolutely. I mean, lawsuits are very stressful and there's not a lot of examination when someone files a lawsuit. There's no gatekeeper that says, is everything in this complaint true? There's no investigation performed. I mean, it's actually very easy for someone. The act of filing a lawsuit is pretty easy to do. And then yes, for a business, it causes a lot of stress and costs and resources.

You know, before we fully move on to talking about what employers should do, because we've kind of transitioned there. Peter, I was hoping you could just put a button on us talking to employees with some directed advice to people. If they feel very passionate about something and they want to say it on social media, they want to go to a rally. What should they be thinking? How should they be evaluating their actions as it relates to their potential future employment or lack thereof? People forget when you make statements on social media and you think it's just a small group of friends, even if you're a private profile, there's nothing stopping someone screenshotting and sending it around. When I do training on this topic, I usually talk about, well,

what does your profile look like? Does it identify you as an employee of a specific company? Does it include a company logo? Does it include your position? Does it include your company email address? These are all factors, if they're there, that a company could use and say, hey, we're attached to this 10 different ways just because of the way your profile is structured, especially if you're doing it on something like LinkedIn, which is a professional networking platform and really intended for business communications. But let's say it's even just your Instagram account. There, there's a lot of potential identifying factors. And then it even goes to who are your followers on that platform?

Like if your followers are clients and customers and fellow employees, things you say there will be seen by them, heard by them, potentially passed by them back to your bosses. So you need to be mindful of these things. And I'm not saying don't talk ever. I'm just saying be mindful of it, be mindful of what you're saying, and understand that there could be consequences. Now, I will say this also, if you're a senior level employee and a very high level employee in a company, or you're very visible publicly, you have a public profile. I think if you're ever thinking that something is on the edge of

controversy that you're about to put out there, do a check-in with your corporate PR team, talk with someone, get a sign-off. You have these resources available to you, use them. If you have crisis advisors on staff, if you have a PR department, there is no reason why you should be putting out a post that may be controversial without passing it by them first. And if they say no, then they say no. Or you can figure out something to do, but at least you're not in a further mess. And sometimes you're in the heat of the moment and you just need that opinion. Just ask someone else, like your partner, your spouse, your friend, say like, is this a good idea for me to be doing this right now? Take that moment to check yourself and decide

whether it's worth it. I was just going to say that last part, which is like, if you don't have the resources available to you because you're not some senior person, you got somebody in your life who is looking out for you, who is hopefully risk averse. For me, as Nicole knows well, it is my wife. Smell test. Yeah, it is the smell test with Jen. If I am 1% unsure about whether or not something belongs in the world, I show it to her. In fact, we just, you know, we recorded this episode just a couple days ago, the one that came up before this about whether or not to say something on social. And, you know, like every episode, including this one that we're recording, we record for

a while and then we edit it down. You know, so not everything we say makes it in. And I had a question about whether something I said during the recording, I was like, eh, should this be in the permanent record? And I showed it to my wife. She said, nope. And out it went because it's really good to have that. It's really, really good to have that. It's important. Yeah. For what it's worth, my measure for myself is often, when this is out in the world, am I worrying about it? If I put this out in the world, am I thinking, oh no, I'm going to get an email from somebody who's upset about this? And if the

answer is yes, I'm going to be worried about this, then let's just eliminate that worry. I'm going to do my future self a favor right now and remove the worry from future self by not doing the thing right now. And if I'm not sure about that, then Jen often gets me there. So that's my check. Yeah. And that triggered something else that is really important to me. Stick around. Help Wanted will be right back. One of the most stressful periods of my life was when I was in credit card debt. I got to a point where I just knew that I had to get it under control for my financial future

and also for my mental health. We've all hit a point where we've realized it was time to make some serious money moves. So take control of your finances by using a Chime checking account with features like no maintenance fees, fee-free overdraft up to $200, or getting paid up to two days early with direct deposit. Learn more at Chime.com slash MNN. When you check out Chime, you'll see that you can overdraft up to $200 with no fees. If you're an OG listener, you know about my infamous $35 overdraft fee that I got from buying a $7 latte and how I am still very fired up about it. If I had Chime back then, that wouldn't even be a story. Make your fall finances a little greener by working

toward your financial goals with Chime. Open your account in just two minutes at Chime.com slash MNN. That's Chime.com slash MNN. Chime. Feels like progress. Banking services and debit card provided by the Bank Corp Bank N.A. or Stride Bank N.A. Members FDIC. Spot me eligibility requirements and overdraft limits apply. Boosts are available to eligible Chime members enrolled in Spot Me and are subject to monthly limits. Terms and conditions apply. Go to Chime.com

slash disclosures for details. I love hosting on Airbnb. It's a great way to bring in some extra cash, but I totally get it that it might sound overwhelming to start or even too complicated if, say, you want to put your summer home in Maine on Airbnb, but you live full time in San Francisco and you can't go to Maine every time you need to change sheets for your guests or something like that. If thoughts like these have been holding you back, I have great news for you. Airbnb has launched a co-host network, which is a network of high quality local co-hosts with Airbnb experience that can take care of your home and your guests. Co-hosts can do what you don't have time for, like managing your reservations, messaging your guests, giving support at the property, or even create your listing for you. I always want to line up a reservation for my house when

I'm traveling for work, but sometimes I just don't get around to it because getting ready to travel always feels like a scramble, so I don't end up making time to make my house look guest-friendly, I guess that's the best way to put it. But I'm matching with a co-host so I can still make that extra cash while also making it easy on myself. Find a co-host at Airbnb.com slash host. Welcome back to Help Wanted. Let's get to it. A conversation I have with the executives I work with a lot, which is, it's not just about you. And it's not just about the company. You have a responsibility to the people who work for you. And you have to think about the impact on them. Right? And so you may have a particular viewpoint on a situation. I would hope as a leader, if you're a high profile person, if you're a leader, you would think about the impact it's

going to have on the people who work directly for you. And that can mean a lot of different things, right? I mean, it doesn't necessarily mean are they going to agree with me or not, but it could mean can they work with me or not? And it could also mean, am I creating a mess that I'm willing to take on, but now it's going to ruin their day-to-day existence too, because they have to deal with all the, I'll use a legal term, shit that comes with it, right? I mean, if that's a legal term, I'm passing the bar. Yeah, yeah. You're flying colors. That's something that as a leader, you should be thinking about in these situations too. So that's why it's so important, go to someone else and say, hey, am I am I thinking about everything here?

So, Peter, you talk about this really fine line, and I think it's important to try to highlight the line or underline the line a little bit to make it more clear. Can you give an example of something that could be a fireable offense and something that couldn't but is close to the line, perhaps in the context of what's happening in the world right now? Look, I mean, when you look at these situations, is something really obviously offensive? Is it something that might be considered hate speech? Is it using derogatory slurs or terms for a group of people, category of people? Are you advocating violence? Are you saying, kill one group of people or people deserve to die, things like that? Or I would say in the bucket of obviously fireable offenses, there's really no excuse for using like racist terms or advocating violence or advocating the death of any particular person or group. And I think those things are going to be

problems. I think specifically saying negative derogatory things about your employer in the context could also go there as well. Yeah, that sounds like a bad idea. Generally, you're going to look, is the statement obviously offensive? Is it hate speech? Those things are kind of obvious. But then you're going to look at, does it put the employer in a place of controversy? Does it impact their business? Is it offensive to their clients? Is it offensive to the other employees? Can you exist as an employee at that company going forward? I mean, those are things that an employer is going to be asking. I mean, also if you use, you know, sometimes using curses and other types of slurs that aren't necessarily racist sort of add to that mix as well. You know, when I used to do the training and give this talk, we'd talk about like, you know, pictures and things that were more obvious. A lot of people get in trouble, and this happens

in politics all the time. Like some senator will retweet some crazy thing that some conspiracy theorist put out. The senator didn't create it themselves. Maybe they didn't even comment on it. They just shared it. And those things can become very explosive. So it's not sometimes about what you say, but rather just about you amplifying something that somebody else said. What's the line there or how should we be thinking about that? That's going to be treated just the same as speech and as your own crafted speech. I mean, that is a statement that you are choosing to share with your followers and you're perpetuating and putting out there in the world. And I would say you have a responsibility to make sure it's accurate and to make sure it's not going to

cross any of these lines that your employer may have. Yeah. Like Mia Khalifa, right. Got fired from Playboy for reposting Hamas images and saying ridiculous moronic things like turn the phone sideways or something. That's not like, you know, so, so reposting images with commentary or with not sounds also like no-go zone. Right. And also, I mean, you bring up an interesting example. I mean, people who are influencers for brands, they're going to have broad provisions in their contracts on this stuff. And so I work with a number of them. They need to be very careful about what they're sharing. They live in a mode where they're just sharing stuff all the time. They're reposting stuff all the time. And sometimes you look at it and you say,

well, that doesn't seem right or that source. I've never heard of it. What is that? I think there was, like there is all the time, but especially this week, a real focus on the number of fake accounts that are churning out information on the war. And I would never share something that I was not 100% confident in. You mentioned several layers of analysis that an employer should be thinking about when evaluating these decisions. Can we go through some of those? Because I think it's important for any employer of any size company to know what those are. The starting point is always,

what are your company's values? And these situations sometimes become a real crisis point for companies because maybe their values aren't that strong or they're not articulated, or maybe there's disagreement over what their values are amongst their executives. But that's where a company should start and where the whole examination should start. And then you're going to look at the actual speech itself. So for the company values, does that mean it needs to be written somewhere, posted somewhere? How do you codify your company's values? Well, there are some companies that write them and they have mission statements, they have value statements, they have guiding principles. I used to work with a company that

had them in every elevator that existed in the company. They were posted right in the elevator and you could read them. Now that's pretty old school, but everyone knew what the values were. I love values. I'm into values everywhere. You should love values, right? I mean, that's something very positive. Seems like baseline, but it's very confusing that some don't these days. I guess to just bring back the connective tissue to what we're talking about here as an employer, like I run a small company. I don't have written down values. I just thought of this right now. Is this something that I should...

I know a lawyer who could help you with that. I'm not going to charge you for it. Let's workshop it right now. I'll send you a draft. Thank you. Thanks, Peter. Is there something that I should be thinking about? I'll just use myself as an example, right? We run a small company, small but mighty and growing company. I am very proudly Jewish. I talk about it. I am very proudly

Israeli American. If somebody in my company posted something crazy, like a swastika, okay, suggested something crazy, like a swastika. Okay. I want to make sure that I can fire the fuck out of them. Like immediately. Legal term. Follow me for more legal advice, everyone. So how, how do I think about like the wording? Because you think about this all day long, like the devil is in the details of the wording and how it's phrased. So should I, what phrases would protect me against that so that that person, you know, didn't sue me or I could feel that I safeguarded myself from any, you know, potential lawsuit. So in terms of looking at a value statement, then you would have something that includes, you know, your commitment to respect fellow employees, the community, responsible corporate citizenship, things

like that, being responsible members of your community and industry. Something like posting a swastika. I mean, you don't really need a value statement to deal with that. That you can deal with pretty easily. I'd help you deal with it for free. You're such a mensch. It's called firing the fuck out of that. Yeah, exactly. We have a special forum for that. Yeah. I mean, you'd want to talk about your

commitment to being responsible citizens. You want to talk about a commitment to treating people decently, treating each other decently, conducting business in a responsible way that you're proud of and that you can stand behind. I mean, those type of things I think would be the concepts you would look for in a value statement, along with probably business-related objectives in there as well. Peter, I work for a somewhat larger company, and there's an interesting thing that I get with some regularity. This is actually something of a funny story, but it leads to a real actual serious point,

which is that I get these emails. And the email is always basically the same, which is, hi, how could you employ this terrible person? We're just going to come up with the name, John Smith. How could you employ this terrible person? We're just going to come up with the name, John Smith. How could you employ this awful person, John Smith, who says racist things on Facebook? Here is a screenshot. I am so disappointed in your company that you employ this person.

And I always look at it. I'm like, my first is like, oh God. And then I say, but this person doesn't work for us. And then the reason why this is a funny story is because the answer to this is always the same, which is that the person in the whatever, their job or occupation slot on Facebook, where they could fill in what their job or occupation is, they write entrepreneur, and it auto fills to entrepreneur like magazine. That's very funny.

Yeah. So it always looks like these people work for entrepreneur. They do not. Just to be very clear, they do not. So fortunately, none of the terrible people who have been flagged to me are employees of entrepreneur. Therefore, there is truly nothing that I can do. But I would bet that this kind of thing happens a lot. And the larger the company you're at, the more you possibly are employing people who are going to be saying some crazy stuff on social media. And I'm thinking about that. And then I'm thinking about what you said earlier about consistency, about an employer needs to be really consistent in how they handle these kinds of situations. So what's your advice to an employer when they become aware, by any means, whether it is a stranger emailing them or somebody internally flagged it,

what should they do the second that they are aware of something that somebody in their employees said? You need to investigate. The source of the information is just one factor. I used to exclusively represent companies and I dealt with a lot of companies who hated anonymous complaints because they felt it was cowardly, or whatever, like dubious. And, you know, why do we have to deal with it if they didn't want to identify themselves? But okay, you know, that's one factor, it's anonymous, and we'll figure out why it was anonymous, usually figure out by the end, why it is anonymous. But as an employer, the first thing you have a duty to do is investigate it and see what it is. So is this person, like you said, is this person actually your employee?

Did they actually make this statement? I mean, in this day and age, that's a really relevant question. People are making up stuff all the time and it's very easy to do it. You know, you could use AI to really reconstruct videos, voices, it used to be text, used to be, you know, falsifying documents. I've dealt with plenty of cases with jealous wives, husbands, boyfriends, others who like make stuff up to nail their partners or get them in trouble. But you investigate, see if they're true or not. And then you go through, hopefully, a pretty standardized series of steps in your decision-making process, which would hopefully include talking to the employee and understanding, confirming first that they did this and understanding why they did it and giving them a chance to present their side of

the story. Now, if you're arrested, that's called due process and having those steps of having a court hearings and all that stuff and having access to evidence. But in a private setting, you can choose to do as little or as much as you want, depending on the circumstances. But I would recommend it, especially if you know, if it's something that's potentially controversial, that's potentially public, you want to take all the steps possible to investigate what happened and then have a serious discussion about what your range of options are for dealing with it. Ideally, if it's a really serious situation with a very potentially significant impact on your business

or your employees or your reputation, you're going to bring in an experienced investigator to look at it and figure it out and figure out the facts. So then you can take those facts and make your decision. Let's say that you go through all that and it turns out, again, just use the example name. It turns out that John Smith is a racist and not only a racist, but a racist on social media. And it's time to get rid of John Smith. Do you actually have to, as the employer, tell John Smith, this is the reason? Is that mandatory? Do I have to say you posted this on Facebook?

It is appalling. Therefore, goodbye. Or can you just say goodbye? The law doesn't require that you provide a reason. But if you were working with me on it, I would tell you absolutely you should tell them the reason. You should put it in writing. It's helpful to you for several reasons. First, I think terminations always go bad when an employee is surprised or doesn't understand why they're happening. And here you have a clear reason. There's no

reason not to share it. So you share it. Maybe the reason not to share it, or maybe the reason why you're asking is you're afraid the employee is going to have some sort of negative reaction or get violent or do something. They might do that if they don't know why they're being terminated and they have these tendencies anyway. So you might as well get the reason in front of them and you might as well have that. And it's important to have it for future legal challenges. A lot of employees, even if they're terminated for misconduct, will go file for unemployment. Well, if you're terminated for misconduct, you're not eligible for unemployment. That's usually a very sore spot for employers. So it's good to have that evidence to submit to the state agency when they

request it. And I think these difficult situations, as difficult they may be to deal with, they're important moments of building trust with your remaining employees. And so it's important for your employees to know that someone made racist statements and you terminated them for it. That's, I think, most cases, your employees will appreciate that and respect that and be glad that they work somewhere that would terminate an employee for saying horrible things. Or protects them or shows the precedent of not negotiating with terrorists. And, you know, it kind of creates a chilling effect. You talked about not being eligible to get unemployment if you're fired for misconduct. I know it usually sounds like potato, potato, but firing for cause and resigning is totally

different. And how should companies think about the language? Yeah. I mean, if someone does something really serious that violates a policy, violates a contract, that should be articulated and documented. Cause, if you have a contract, that's going to be defined in a contract usually, and the reasons will be very specific. Otherwise, cause doesn't really exist for at-will employees, but you can certainly describe the offense and it would be the equivalent of a misconduct for an unemployment agency. It's just very important if you have a good reason for terminating someone to stand behind it. What are the options? So it's like

firing with cause, firing without cause, designing, laying off? I don't know. Yeah. I mean, cause is contractual. So cause is either when you were dealing with someone with an employment contract or you're dealing with a union contract. Union contracts have cause and employment contracts have cause. Everyone else is at will. So they could be fired for any reason except illegal reasons. And so you could say, well, we're firing you for violating this policy. Then there are layoffs where we're letting you go for financial reasons or organizational restructure. It's no fault of yours that we're letting you go. So the situations where an employee is let go for something that's not a company violation, company policy violation, those are situations where they can be eligible for unemployment. But if there is a policy violation or other misconduct, like they punched an employee, another employee, or there was violence, then that's a form of misconduct. Those situations, they're not eligible for unemployment. That's really like one of the main things people are concerned about when they get terminated,

frankly. Or severance, I guess, right? Severance or no money on termination if it's caused, right? Right. Yeah. So if a company has a severance policy, which a lot of big companies have severance policies, some smaller ones do too, maybe a little less sophisticated, but severance policies will sometimes have cause definitions in them. And if you're fired for

cause, you won't get severance. And also if you're in a stock plan or an option plan, there will be cause definitions there. You could lose options, even vested options, if you're terminated for cause or deferred compensation for certain executives. There are different scenarios where it could come into play and where the definition exists, but for the majority of employees, it's not applicable. I think a lot of entrepreneurs, small business owners are really concerned about potential lawsuits, but oftentimes the goal of employee lawsuits for any kind of termination is to settle or get money. And so what is a way for companies to think about

this in a financially judicious way to try and balance settling with someone you don't agree with and spending a bunch of money to fight them. Because in this legal system, you will forget more than I will ever know. But for example, I had a crazy stalker who decided he was just going to sue me all the time. And that was his tactic to terrorize me. Oh, God, that's terrible. And I had to hire a law firm and I had to deal with it. And that was hell because in this legal judicial justice system, I had to do that. So how do you tell employers how to balance the financial effects of an employee coming after them? Well, we always start by saying you got to do what's right for your company.

And so this week, I've had some discussions with executives who are considering terminating people for their statements on social media. And my main question to them is sometimes, or my main statement to them is sometimes you just have to do the right thing and then take whatever costs come attached to that. If you took the right step for your business and for your employees and for your customers and your values, then the costs, those are just business costs that you have to deal with. With respect to litigation specifically, that's going to be a case-by-case basis. I mean, some cases, companies will spend millions of dollars just to prove a point. And they don't care. And they're going to engage in it. And in others, they don't want to spend a cent. Nice to have that. But yeah, yeah.

A lot do, right. And then in other cases, you know, they're very cost conscious about what's happening. And they'll want to settle it as soon as possible. And then hopefully get terms that at least could make it a little more palatable to everybody. But most lawsuits end up being some sort of financial cost benefit analysis. It's very rare that you have something that's like a bet the company type case, but when you have them, cost is going to be a secondary issue. And generally with employees, I tell employers because I started my career representing only employers. And then for the last seven years, I've been representing mostly executives and employees. I have this full 360 perspective now. And so the companies I work

with now, I'm able to say to them, well, a lot of employees really don't want to sue you. It's such a drastic step. There's so many reputational concerns that they're going to have going forward and people need to work. So they don't take these steps lightly. So it's a real case-by-case type discussion. Peter, this has been so helpful. And I feel like the takeaway after a long legal conversation is actually just use some common sense for employees and for employers. For employees, you know if something that you're posting is going to be upsetting. You know. So maybe not. And employers, there's a whole lot of legal things to consider, but also you know when you see it in a way what's good for your company. So if it comes to it, Peter, I know sometimes lawyers buy billboards and they advertise themselves. And so just a free suggestion after all the free legal advice you've given us, which is that I think Peter Rabar, for when you need to fire the fuck out of someone, which would be a great billboard. Oh my God. Take it or run.

Wow. That's definitely not on my Raybar Group hat. I have to reconsider the design and the logo. Network. Help Wanted is hosted by me, Jason Pfeiffer. And me, Nicole Lapin. Our executive producer is Morgan Lavoie. You want some help? Email our helpline at helpwanted at moneynewsnetwork.com for the chance to have some of your questions answered on the show. And follow us on Instagram at moneynews and TikTok.