August 9, 2022

Volume XII, Number 221


August 08, 2022

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Preparing Corporate Messaging in the Wake of Dobbs

The United States Supreme Court (“SCOTUS”), in Dobbs v. Jackson Women’s Health Organization, has held that there is no constitutional right to abortion, overruling Roe v. Wade and Casey v. Planned Parenthood.

Employers, who increasingly are finding themselves on the front lines of many societal issues, will need to decide quickly whether and how they might address the Dobbs decision, as public reaction has been and is likely to remain strong. Board members, employees, and shareholders may advocate for corporations to take a visible stand on the issue of abortion and reproductive rights. And employees may want to speak up themselves (possibly via employer social media accounts).

It is important to remember that company communication decisions and actions regarding the Dobbs ruling, as well as other political and social issues, can have practical and legal implications.

The first question is whether your company will comment on Dobbs. If you decide to comment, there are many factors to consider. Your message is an important starting point. Who is your intended audience? Will your employees consider it an opportunity to join in the conversation? What will you say? Even if your message is internal, keep in mind that it may not stay that way, given the nature of social media. And before you think, “I’ll just stay out of it,” remember that some will view silence or neutrality as a statement in and of itself. If you choose not to speak, are you prepared to deal with any potential reaction from customers, employees, or shareholders?

Internally, employees may have questions about health benefits or other terms and conditions of employment because of Dobbs. It will be important to arm all key stakeholders, including leadership, corporate communications, and human resources, with tools to consistently manage these communications and responses.

Whether it’s internal or external communications, expect feedback! How that feedback is handled is as important as the initial communication (or lack thereof).

Certain industries, like healthcare and insurance, may also feel compelled to make an affirmative statement if the Dobbs decision has a direct impact on services and/or products. In those cases, the need to consider all implications is even more pressing.

In thinking through these decisions, employers should also consider who may need to approve any messaging. The board of directors, senior executives, legal, and marketing and communications teams are among the key stakeholders who may need to be consulted. And don’t forget that your public-facing employees may bear the brunt of your response. Are they prepared?

Employers should also keep in mind various laws that may govern their reaction, including those they might otherwise not consider. For example, the National Labor Relations Act protects employees’ rights to collectively discuss terms and conditions of employment at work and off duty – and that applies to employers with and without a unionized workforce. The current Biden-appointed General Counsel of the National Labor Relations Board has taken an expanded view of topics that are connected to the workplace. Moreover, some states, including California and New York, have enacted off-duty conduct laws that prohibit employers from disciplining employees for lawful conduct outside of work, which may include political advocacy. There may also be anti-discrimination laws and potential civil and criminal liability associated with your statements, depending on their wording.

Reactions to the Dobbs decision may vary. Some reaction may be comparable to what we’ve seen with respect to other recent political and/or social justice movements, such as Black Lives Matter and #MeToo; others may react differently, or not at all. In these rapidly changing times, companies — particularly publicly traded and consumer-facing ones — need to be make informed decisions. Clear, consistent messaging is key to establishing confident and consistent responses to potential concerns by employees and other stakeholders. 

©2022 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume XII, Number 175

About this Author

M. Carter Delorme Epstein Becker Green D.C. Labor Attorney
Member of the Firm

For more than 25 years, attorney Carter DeLorme* has defended companies in labor and employment law matters, consistently crafting innovative solutions advancing clients’ business objectives. Clients turn to Carter to represent them in matters involving equal employment opportunity, wage and hour, trade secret, and restrictive covenant claims before federal and state courts and administrative agencies.

He also has tried important contract interpretation and employee discipline arbitrations. In addition, Carter has extensive experience,...

Frank Morris, Health Care Attorney, Epstein Becker Law Firm
Member of the Firm

FRANK C. MORRIS, JR., is a Member of the Firm in the Litigation and Employee Benefits practices, heads the Labor and Employment practice in the Washington, DC, office, and co-chairs the firm's ADA and Public Accommodations Group.

Mr. Morris' experience includes:

  • Advising clients on and litigating employment, labor, disabilities, non-compete, confidentiality, benefits, information access and privacy, wage and hour, and general litigation matters in state and federal courts and administrative agencies...

Susan Gross Sholinsky, Labor Employment Attorney, Epstein Becker Green Law Firm
Member of the Firm

SUSAN GROSS SHOLINSKY is a Member of the Firm in the Labor and Employment practice, in the New York office of Epstein Becker Green. She counsels clients on a variety of matters, in a practical and straightforward manner, with an eye toward reducing the possibility of employment-related claims. In 2013, Ms. Sholinsky was named to theNew York Metro Rising Stars list in the area of Employment & Labor.

Jennifer Stefanick Barna Employment Lawyer Epstein Becker Law Firm in Newark, NJ
Senior Counsel

JENNIFER STEFANICK BARNA is a Senior Counsel in the Employment, Labor & Workforce Management and Litigation practices, in the firm's Newark office. Her practice focuses on civil litigation and corporate counseling in the areas of employment law and complex commercial matters. Ms. Barna represents businesses in a broad spectrum of industries, including commercial real estate, financial services, health care, and retail.

Jennifer Barna's experience includes:

  • Representing employers in state and...

A skilled advisor, negotiator, and advocate, Erin Schaefer helps employers solve their labor management relations workforce problems. Drawing her experience as a field attorney for the National Labor Relations Board (NLRB), Erin assists clients in negotiating collective bargaining agreements, managing union organizing and other labor relations issues, and resolving their labor disputes. Employers rely on Erin to represent them in unfair labor practice proceedings, grievance and arbitration hearings, government investigations, and related litigation in state and federal...