Lauri F. Rasnick, Susan Gross Sholinsky, James S. Frank, Peter A. Steinmeyer, Denise Merna Dadika, and Shawndra G. Jones, Members of the Firm, co-authored an article in Employee Benefit Plan Review, titled “Dealing with Controversial Commentary? Some Guidance and Guardrails for Employers.”

Following is an excerpt (see below to download the full version in PDF format):

The Israel-Hamas war. Antisemitism and Islamophobia. Ukraine versus Russia. Black Lives Matter. #MeToo. Mass shootings and “Well Regulated” versus “Shall Not Be Infringed.” Vaccination and mask mandates. Politicians and presidents. Culture wars. Doxing.

Difficult issues and painful news stories that spur debate and heated discourse seem relent­less. Perhaps that has been true throughout the ages, but now, with wars raging and campaigns for the 2024 elections kicking into high gear, the potential for harmful words and strong feelings to be amplified may be greater than ever. Today, personal recording devices are available to every person who carries a smart­phone, and social media platforms disseminate not just words but images, videos, and even artificial-intelligence-generated content that can be readily shared with a worldwide audience in real time.

As has been widely reported, amid on-cam­pus protests, some student activities in response to an ongoing international crisis recently led a few employers to rescind job offers to stu­dents whom the employers deemed to have made or supported antisemitic remarks and/or conduct. Given the increased targeted violence and harassment on campuses, numerous law firms (including the authors’ firm) joined in a November 1, 2023, letter to law school deans condemning “anti-Semitism, Islamophobia, racism or any other form of violence, hatred, or bigotry” and urging the schools to take a likewise “unequivocal stance.”

It is not the first – and probably not the last – instance of employers making news with their public responses to various controversies. One employer upheld its policies against harassment by terminating an employee’s employment after her treatment of a Black man in a public park went viral (leading to criminal charges). Others publicly announced support for access to repro­ductive health care by offering travel benefits for employees seeking abortions after the U.S. Supreme Court issued its decision in Dobbs v. Jackson Women’s Health Organization,1 over­ruling Roe v. Wade. Many companies issued statements following the October 7, 2023, Hamas terrorist attacks on Israel.

When significant news arises and tensions run high, employers often wonder how – and if – they should respond, whether by taking a formal position on the controversy du jour or by responding to employee reactions that have come to their attention. This article provides legal and practical considerations that may be applied, no matter the issue.

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