Freedom of Speech in the Workplace

Let me begin by saying this, employees do NOT have a constitutional right to free speech at work. The First Amendment of the U.S. Constitution begins, “Congress shall make no law…” Who is the Congress…the Federal Government and NOT private actors. “The First Amendment does not apply to private actors, and employers are private actors,” stated Attorney Grant Alexander. In 1866, the 14^th Amendment expanded the Bill of Rights by stating it applied to state and local governments as well. There is no federal protection from anyone else including employers.

Individual states have adopted a version of freedom of speech in their own individual state constitutions. And while the federal constitution applies to federal government employees, state constitutions may have language broader or more limiting specific to employers. Employers must know their state’s constitution and permissions granted.

While employees do not have the right to say whatever they choose, employers cannot restrict all employee speech. In 1935, Congress enacted the National Labor Relations Act (NLRA) to protect the rights of employees and employers. NLRA protects the right of an employee to discuss the terms and conditions of employment such as compensation, paid time off, benefits, and working conditions. According to the NLRA, it is illegal for employers to “interfere with, restrain, or coerce employees” allowed protected rights granted within the Act. To determine if an employee’s speech is protected by the NLRA, one must look at the context. Discussions regarding unlawful business practices, unsafe working conditions, workplace harassment are all examples of lawful speech. It must “facilitate the employer’s improvement.”

So now, you are asking yourself what can the employee NOT say? Employers can prohibit:

• Illegal Speech – speech that is protected by NLRA and Title VII of the Civil Rights Act
• Unprofessional Speech – speech that is rude, unprofessional, profane in tone or appearance
• Customer Directed Speech – speech directed at customers; or disclosure of private customer information
• Gripes – speech that consists merely of griping
• On-The-Clock Speech
• Disruptive Speech – speech that affects job performance of themselves or co-workers

Employees do not have the right to say whatever they choose without fear of consequence. Private sector employers can impose disciplinary actions on employees as long as the action is consistent throughout organization. “Employees of private employers are subject to the private employer’s rules, and the First Amendment offers no protection.” Employers do have the power to discipline employees when the employee is involved in illegal or prohibitive speech. Employees can talk about unlawful events but cannot participate in unlawful events.

So, let’s go through an exercise…a little Q&A session.

• Question: Can I terminate an employee if they have been arrested?
  • Short answer, yes. Long answer, what does your Employee Handbook state? If Company policy states employees cannot participate in “unlawful behavior” that would include speech and behavior away from the workplace.
• Question: Can I terminate an employee for content posted to social media?
  • Again, it all goes back to context of material written, posted, or shared. Any social media posts containing protected NLRA content is allowed. If the context of the posting is Illegal, unprofessional, customer directed, gripes, or disruptive in nature, then the employee could face disciplinary actions up to and including termination. Each situation needs to be reviewed on a case by case basis being consistent with Company policy.

• Question: Can I terminate an employee for talking politics in the office?
  • No, unless the conversations become disruptive or harassing. Political discussions occur every day in the workplace. It is when those discussions turn ugly that disciplinary actions up to and including terminations can take place. Potentially disruptive conversations should be discouraged.

Consistency is a must when determining if termination is the best disciplinary action. Ask yourself, have I followed Company Handbook? Have we treated all employees “firm, fair, and consistent?” Are all employees aware of company policies? Employers must do their due diligence with consistent messaging and treatment. Employers who show inconsistent handling of employees can quickly find themselves in legal trouble. Employers need to know what is protected under NLRA to avoid any legal entanglements.

References: SHRM; www.fisherphillips.com; www.jdsupra.com; Scott Tackett