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Welcome to AccelPro Employment Law, where we provide expert interviews and coaching to accelerate your professional development. Today we’re going to talk about workplace activism. Our guest is Peter Rahbar, an employment attorney, workplace issues expert and founder of The Rahbar Group. He offers a three-step process—strategy, policies, and communication with employees—to handle whatever comes up, and with this being an election year, surely something will.
A company can’t predict or control problems created by workplace activism. But it can control its preparation for handling it. “If you don’t have a rapid response team set up as a company, you’re probably not doing your job, in my estimation,” he says. “You need to have a cross-company team ready to go when a crisis emerges. That would not only include general management executives, but also lawyers, comms people (and) technology people.”
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Peter Rahbar’s Rahbar Group profile.
TRANSCRIPT
Matt Crossman, host: You are an employment attorney, workplace issues expert and the founder of The Rahbar Group. Today, we’re going to talk about the rise of activism in the workplace and how to handle the resulting thorny free speech issues. You offer three tips for companies to handle workplace activism if and when it comes up, which this year, it probably will for many companies.
Those tips are No 1, have a strategy for how to handle it after it becomes an issue. No. 2, have policies in place that address it before the issues come up. And No. 3, increase touch points with employees so you know what’s going on with them and can detect problems ahead of time.
First let’s talk about your background. As I said, you’re the founder of the Rahbar Group. What do you do there?
Peter Rahbar: Well, thanks, Matt. I exclusively practice in the employment law area on all types of employment law issues. My practice right now is predominantly on behalf of executives and other employees negotiating their employment agreements and severance agreements, etc. But for the bulk of my career I advised employers on how to deal with some of the situations we’re going to talk about today, and how to otherwise deal with employee issues.
MC: Even in the legal community, the term free speech is thrown out a lot when this issue comes up. But we misapply that term at our peril. The truth is, at work, you don’t have an absolute right to free speech. I think we should start there. What, if anything, is protected and what isn’t?
PR: It’s a great point, and it’s something I’ve said so many times in the past during this practice: Employees do not have a right to free speech at work. Some public employees do, but let’s talk about private employers to make it easy here.
Your employer sets the rules when you’re at work. You have rules about when you work, where you work, what you work on, and they can also regulate most of what you can talk about and not talk about. And so when people say they have free speech rights, it’s a whole different animal at work.
And really when you talk about having free speech rights, it’s about not being arrested and thrown in jail for what you say. An employer can make rules where they can certainly fire or otherwise discipline you based on some of the things you say at work that may not be protected by law.
There’s some speech that is protected. And that’s speech regarding the terms and conditions of your employment.
MC: Before we jump into the tips, you said that there are things that you can be disciplined for, even terminated for. What is the line between somebody who’s just annoying, which I think we all have to deal with at some point, and somebody who does something that’s actionable?
PR: We’ve all dealt with annoying colleagues and employees and bosses, by the way. Bosses can also be annoying. I think the big point here is that the employer sets those lines. I can sit here and tell you what I think, but that’s going to differ vastly amongst different companies.
I work with a lot of different clients in different industries, and some of them are really in sensitive, high-profile positions. And in those positions there’s very little you should or could be saying as a representative of a company or at your job because everything you say is so public and out there.
Obviously every job is not going to be like that. But if you’re an executive these days, you can expect to see extensive clauses in your employment agreement or offer letter that tell you exactly what you can say and not say. And so some of the things they may regulate are what you can post on social media, whether you can talk to reporters, whether you can disparage the company. So that’s not saying anything negative about the company, its clients, its employees.
If you’re highly compensated, you’re going to have a lot of rules around what you can say or not say. Otherwise you’re looking at employee handbooks and other policies that are going to say “here’s what you should and shouldn’t be saying on social media. Here’s what we can discipline you for. We’re not going to tell you what the line is, but we’re going to retain the right to make that decision.”
So those are some of the things you see now. From a practical perspective, if you’re making very negative comments about the company or false comments about the company or its customers or targeted, vicious comments about your colleagues, I think you can expect to see discipline.
If you’re revealing confidential information or proprietary information, absolutely you can expect to suffer consequences. So there’s a broad range of what could be acted on. And I think, companies have different ways of defining what those lines are. And frankly, over the past couple of years, companies have really been struggling with that.
MC: OK, let’s get to the tips. No. 1 is to have a strategy for what to do after this comes up. Ted in accounting is always my hypothetical doofus. So let’s say Ted in accounting starts spouting nonsense bad enough that you have to take action against him. You can’t be unprepared. Can you describe what that strategy might look like? For example, what is step No. 1?
PR: Sure. Hopefully as part of your strategy and your policies you’re going to have ample reporting mechanisms and pipelines so that you immediately become aware of situations like this.
So if someone's making racist comments or other comments on social media, hopefully you have the means in place for employees to know they can report this to X in HR, or they can call this number and report it.
The key is, as a company, you can’t be everywhere at once. If you’re a company with tens of thousands of employees, you can’t be expected to be everywhere, but your hope is that your employees feel comfortable coming forward to you. So having the mechanisms in place to get the reports and then designating people to deal with whatever that crisis may be is important.
We’re in 2024, if you don’t have a rapid response team set up as a company, you’re probably not doing your job, in my estimation. You need to have a cross-company team ready to go when a crisis emerges. So that would not only include general management executives, but also lawyers, communications people and technology people.
This could be anything from a statement on social media to a breach, cybersecurity attack or employee protests. You also want to have security people—not just information security, but physical security. You want to know who all your contacts are with local police, other law enforcement agencies, including federal.
You want to have that ready to go. You don’t want to be figuring out that information when a crisis emerges. You want to have that team ready. You want to have meetings with that team, so they know who they are and they’re comfortable with each other. And to the extent you can anticipate some things happening down the line, maybe you want to start crafting some statements to prepare for that.
One of the reasons we’re talking about this topic is because we have an election coming up in a few months. We already have a lot of activity coming up around that election. We know who the candidates are. We know what some of the potential issues are. We know what happened last time.
Some game planning around potential strategies and outcomes is really helpful. A lot of companies hire consultants so they can ask, what do you think is going to happen? Tell us what issues might come up.
If you can’t figure it out on your own—which I don’t always recommend anyway—hire an expert who will tell you here are the top 10 issues you can anticipate in connection with this election. And then game plan how you’re going to deal with each of them.
MC: Two factors I want to ask you about—monitoring and investigation. Is there a difference between having a pipeline and actively monitoring? And what might an investigation look like if “Ted in accounting” posts something nasty? Is the existence of the post all the investigation you need?
PR: Companies do have a right to monitor, and different states have different laws about that. In New York, where I am, there is a requirement that you disclose the types of monitoring you’re doing to your employees. And so that’s one thing, and a lot of companies do that.
You’ve heard stories about tracking keystrokes. In my world where I deal with a lot of non-compete agreements and sensitive information, companies are tracking where you’re logging in on VPN networks and what wifi networks you’re logging into so they can tell your location. There’s a big case going on right now between two online betting companies where that information and an employee’s computer location is a key piece of evidence in that case.
So computers can be monitored. Social media certainly can be monitored. Any internal messaging platforms could be monitored. Basically anything that passes through a company device or system can be monitored. But there are different disclosure requirements and different companies take different steps regarding that.
With respect to investigations, if there’s a complaint, a company has a legal obligation to investigate it, and different situations require different levels of investigation. The existence of the post, is that enough? Maybe not.
The fact that people saw it, who saw it, who are the person’s friends, who are the person’s connections on the network are factors. Are they clients? Are they customers? Are they employees? All those things will be looked at. Other posts will then be looked at. Maybe the company doesn’t monitor social media posts, but now this one came up, so they’ll look at other ones to see what’s there.
And they’ll look at other platforms to see what’s there. So investigations can be far reaching. If any of your devices touches a company network or system, they’re fair game. Even personal phones, if there’s any connection or use for company purposes, can be looked at.
And if you refuse to turn it over, that alone could be grounds for terminating an employee.
MC: Point No. 2, having policies in place in the first place. In an interview on this topic, you said something I wanted to ask you about. “The starting point is always, what are your company’s values?” What do you mean by that?
PR: For all companies, it’s very important to communicate what your values are to the employees. I think it helps put all your decisions in a framework that people can understand and relate to.
And depending on the type of company you are, you’re going to have a different orientation on your value set. I used to work for a media company, and one of our divisions had their values literally posted in the elevator of every building that they owned, and it was very clear what they were.
Part of it was serving the community and part of it was building the employees’ careers and giving them training.
Those things should be constantly examined, constantly communicated. The employees should know what they are.
If you’re a company that values free speech—maybe you’re a media company or a communications company or you could even be a law firm that defends journalists and others—you might be making some different decisions on what employees can say or not say in the workplace. And that would be explained by your values.
But if you’re a tech company, and your goal is to bring a certain type of technology to the world, you might not care so much about free speech. And so if someone starts a political dialogue that they don’t agree with, they may say, well, this is not part of our core mission. Our core mission is to bring new technology to the world, it is not to commentate on political situations. And so you’ve caused this massive disruption. You’ve caused us to lose customers. You’ve caused reputational damage. And frankly, the speech doesn’t align with our values. So you’re out.
And so you got to start there and maybe the articulated values themselves are not going to be necessarily useful, but going through that exercise helps you think about what everyone’s primary goal is and what they should be focused on.
MC: In that same interview, you also pointed out that companies might not always be super strident about following the views that they espouse in the first place. If a company is going to discipline an employee that they say has contravened their values, how important is it that they actually exhibit those values in the first place?
PR: It’s super important. If that’s something you’re going to rely on against an employee, you better be prepared to judge yourself by the same standard. And I’ve had that conversation with managers all the time, where we’ve had discussions about letting, let’s say, more-favored employees do something and firing a lower-level employee for doing the same thing.
You can’t have those types of issues. So I think it’s very important if you’re going to articulate values, which I highly recommend, you follow them, you apply them consistently, you talk with your employees about them, you get feedback from your employees about whether they make sense for your business.
And it’s a constantly evolving process.
MC: We’re talking about tips on how to handle workplace activism. No. 1 was have a strategy. No. 2 was have policies in place. And No. 3, which I’m going to ask you about now, is to increase touch points with employees so you know what’s going on with them and can detect problems ahead of time. What does that look like in practice?
PR: One of the pieces of advice that I give frequently is you can’t communicate enough with your employees. And unfortunately we’re in an age where we’re emerging from the pandemic, and we have a lot of new managers who have been promoted but who have not received sufficient training. It’s a classic problem. But I definitely feel like I’ve dealt with it more often recently.
More than anything, managers need to be told and reminded that they need to be constantly talking with their employees to understand what’s important to them, what they’re doing.
We read these stories coming out of the pandemic about people who had three jobs at once, and that was the employee’s problem. I read those articles and said, well, that’s the manager’s problem. What manager would be so out of touch with their subordinate that the subordinate could have three jobs and they wouldn’t know? That’s impossible.
And so I’m not saying be overbearing and micromanaging. But you need to know what’s going on, you need to know how your employees are feeling, what’s important to them, what's making them happy and what’s making them unhappy. And frankly, the more you get into that flow, the more employees feel comfortable telling you things like, hey, a couple of colleagues are pretty upset about X issue, and they really want the company to do something about it.
That’s the conversation you’d love to have, right? You’d love to have that conversation as opposed to having 30 employees take over a conference room and demand that the company stop supporting a certain country.
You want to find out internally through your employees. You want them to feel comfortable telling you. The more you have those conversations, the more you learn about what’s going on.
And so maybe you find out that employees are unhappy about benefits or a specific benefit, well then you can have a town hall meeting or a series of smaller meetings to find out what exactly is the problem. That gives the company a chance to explain in a very reasonable, non-confrontational way, here’s why our position is how it is.
Maybe that influences employee opinion. I find that a lot of managers are afraid to have these conversations because they’re afraid of hearing bad things. And I would say you’re totally losing this opportunity to gain trust and develop a relationship with the people who work for you.
And the information doesn’t always have to be good. You don’t always have to give employees the answers they want to hear. You just have to give them an opportunity to have the conversation. And so if they feel they can have the conversation, they’re not going to band together in groups of 30 because they feel there’s no other way to get your attention.
MC: Now I’m going to pivot and ask you professional development questions. You spent almost 20 years representing major international corporate clients, including more than 10 as the chief employment attorney for a major global media company. Then you went out on your own. Why did you do that?
PR: I come from a family of entrepreneurs, so I guess it was in my blood. My dad was an entrepreneur, still is actually. And my brother went through a similar journey to me where he was a corporate guy for a while and then started his own company.
I had spent a lot of time living the corporate life and also built out a pretty nice network that frankly just resulted in a lot of people reaching out to me, asking for help that I couldn’t give them. And I thought, “hey, this corporate thing’s been nice, but I’d really like to do my own thing. And I could also help all these people who I really like and respect.”
Being in New York, the world’s center for business, there’s obviously plenty of need for lawyers, so I took a leap of faith. I certainly planned it for a while and talked with people about it. But here we are, seven and a half years in, and I haven’t looked back.
I’ve really enjoyed it. I like being my own boss, and I like helping people navigate the playing field. And that’s really the work-play field, that’s another reason I did it—I could see that people had a really hard time finding sources of good advice for work-related issues.
And given that we spend so much time at work, I felt that was important and useful work to give individual employees access to the same quality level of advice that their bosses are getting.
MC: What has been the biggest challenge in those seven and a half years and how did you either overcome it, if you did, or if you are continuing to overcome it, how are you tackling it?
PR: I’m a business of one. So there’s a constant balance of workload and capacity and the appropriate amount of time to not only do the work but build the pipeline of work. And so I do a fair amount of business development in a very personal way—face-to-face dinners, lunches.
drinks, coffees. Obviously, that’s super important. You have to keep the pipeline going, but you also have to save time to do the actual work. I love signing up the clients, but you have to do the work, too, and deliver the results.
Maintaining your energy levels and taking good care of yourself, those are all really important things.
You need to be able to draw the lines. You need to be able to anticipate a little bit. And frankly, you need to be able to deal with rejection. You’re not going to win every client. You’re not going to win every case. And so these are all things you’re dealing with on your own.
There’s a lot to balance as a solo practitioner or any solo entrepreneur. And that’s the challenge that still goes on, seven years in.
MC: One of our philosophies here at the Accel Pro Employment Law community is that peers talking to peers can be a really valuable way to develop professionally and gain important insights. How have you relied on peers to get The Rahbar Group up and running and how do you continue to deal with them to manage tough situations and career decisions?
PR: I rely a lot on my peers. The strength of my network was one of the major foundations for building this practice. So I certainly rely on my peers for referrals. Some of my former colleagues, whether at the law firm or at Hearst, where I worked before this, are major referral sources for me.
And then there’s people I look up to who I am constantly running business ideas by and seeking out their guidance, including when I started this firm. I went to people I really trusted and I thought were the most successful people I knew and said, what do you think about me doing this?
And they had some really helpful advice for me. And then I have a network of some really close friends who have their own practices and I’m in touch with them pretty much every day. We find out how we’re doing, answer questions for each other, run scenarios by each other. My view of this situation is X. Am I crazy? Can you help me out with it?
I’ve found these people to be incredibly supportive. I try to be as supportive as possible, and certainly I’ve helped a lot of people leave big companies and start their own companies.
That’s been something I’m really proud of, and they’re flourishing. I feel like I played a little role in that for them. That’s really rewarding, frankly.
MC: If I had to guess, I would bet that 90 percent of my work is for friends and friends of friends. Do you know what percentage of your work comes from your network?
PR: I would say probably 90 to 95 percent comes from my network. And I don’t do marketing or ads or anything like that. I try to speak a lot on employment-related issues because I think it’s important to have the individual’s voice represented in the dialogue.
Company PR sort of dominates the dialogue around employment issues. I think speaking on these topics reminds people in my network that I’m around and about what I do. And so that leads to more work from them.
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This AccelPro audio transcript has been edited and organized for clarity. This interview was recorded on May 16, 2024.
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