Freedom of Expression in Workplaces during the Israel-Hamas War
The question of freedom of expression within the context of labor law is a question frequently raised in Israel, usually in the wake of security tensions or rounds of fighting.
As expected, these questions have arisen often since October 7, particularly about the limits of employees’ freedom of expression in the workplace and/or on social media.
Many employers have been encountering the phenomenon of inappropriate statements in the workplace and posts on various social networks that praise and express solidarity with the terrorist organization Hamas and its actions.
Although freedom of expression is a basic tenet, it is important to understand that, within the context of workplaces, employees making statements that incite or support violence may reach the level of a criminal offense and may also cause significant reputational, economic, and social damage to their employers.
What types of statements may be deemed a criminal offense?
Pursuant to Section 24 of the Counter-Terrorism Law, any act of identification with a terrorist organization, including by publishing words of praise, support, or sympathy; waving a flag; displaying or publishing a symbol; or displaying, playing, or publishing a slogan or anthem in public that expresses solidarity with a terrorist organization, is tantamount to a criminal offense punishable by incarceration for three years.
Furthermore, pursuant to Article 144 of the Penal Law, the publication of a call to commit an act of violence; words of praise, approval, or encouragement of an act of violence; or support for and identification with an act of violence, is a criminal offense punishable by incarceration for five years.
Are employees’ statements in support of and expressing solidarity with Hamas considered sufficient grounds for dismissal?
Yes, subject to holding a hearing in compliance with the law.
Israeli case law, and the labor courts in particular, have often dealt with cases involving employees who expressed support for terrorist attacks during hostilities and IDF operations.
Labor courts usually do not intervene in an employer’s discretion, since it has the prerogative to conduct its business as it sees fit.
However, if an employer fails to fulfill its statutory or contractual obligations to hold a proper hearing process for an employee, the court may intervene in an employer’s discretion or, at the very least, rule against it.
A clear example of the obligation to duly conduct a hearing in such cases is the ruling the Labor Court handed down on November 30, 2023. In that case, the court allowed an employee’s motion for an injunction against her dismissal, after and despite the fact that she had made statements condemning IDF soldiers. The employee was dismissed in an expedited process and in violation of the provisions of the collective bargaining agreement applying to the employer. The regional labor court revoked the dismissal because it failed to conform to the contractual obligations in that workplace. This ruling does not set a precedent, since the court issued it by way of an interlocutory proceeding (not constituting a judgment).
The ruling is relevant to the specific workplace, which is subject to the provisions of a special collective bargaining agreement regarding the mode of conduct in the instance of employee dismissals, and one can assume that the employer will appeal to the National Labor Court. Nevertheless, this ruling is a reminder to employers that they must duly conduct a hearing process, even if an employee makes inappropriate and extremely offensive statements.
What options are available to an employer if an employee expresses or posts support for terrorist attacks?
In general, employers must exercise caution and discretion when dealing with an employee who expresses or posts inflammatory statements.
Employers may institute work procedures and a code of conduct in the workplace. It is advisable for employers to impose workplace “dos and don’ts” with regard to employees expressing political statements or inflammatory opinions. Employers should also specify the sanctions they may impose on employees who do not obey these rules. By doing so, employers will ensure a peaceful and calm work environment for all employees, regardless of their worldviews.
Nevertheless, since this involves a restriction of freedom of expression, employers should do so only after they receive legal advice, after reaching full agreement with labor representatives in unionized workplaces, and with appropriate proportionality, as is customary in instances when a constitutional right is being restricted.
Accordingly, employers may open disciplinary proceedings against an employee suspected of conduct exceeding the bounds of legitimacy or who violated work procedures in the workplace. However, it is imperative that employers conduct themselves in compliance with the law, including all provisions of law and case law about the holding of a hearing and lawful dismissal.
The employer must conduct a thorough investigation of the type of post and its nature, severity, and context, and must allow the employee to exercise his right to voice his arguments clarifying his actions.
If an employer suspects one of its employees has committed a criminal offense, the employer may also lodge a complaint against the employee with the Israel Police.
What actions is the State currently taking to deal with posts supporting terrorism?
According to the official positions of the Attorney General’s Office and the law enforcement agencies, the Israel Police has instructions to locate, open investigations, arrest, and prosecute anyone who publishes praise and support for the atrocities. Concurrently, the Cyber Department of the Attorney General’s Office is taking action to remove hundreds of posts disseminated on social networks inciting violence against Israel and Jews.
Additionally, according to media reports, some Knesset members have submitted letters to the Minister of Justice requesting, under particular circumstances, to deny severance pay and advance notice to any employee indicted for the offense of expressing solidarity with or support for a terrorist organization.
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Barnea Jaffa Lande’s Employment Department is at your service to answer any questions about freedom of expression in the workplace or any other issues.
Adv. Lior Girshevitz is an associate in the department.