Educate yourself and your employees on the types of speech that are protected in the workplace.
Freedom of speech – it is our First Amendment right as Americans, but to what extent does it apply to the workplace? As an employer, you may find yourself in the tough position of having to handle an employee who has said inappropriate things in the workplace. It is important that you understand the rules and limitations of free speech, and how they extend to your employees and the workplace. This understanding will help you ethically navigate uncertain situations without legal backlash.
Do employees have freedom of speech at work?
In short, maybe – but probably not for the reason you think. Although many employees might misguidedly subscribe to the notion that the First Amendment (Amendment I) protects their freedom of speech in the workplace, this is not always true. The First Amendment may apply to businesses in the public sector, but it does not directly apply to those working in private businesses and organizations.
Even though the First Amendment may not protect your employees' right to share their controversial opinions in the office, employers and managers should be acutely aware of other federal and state laws that protect workers from retaliation.
"There are certain types of speech that are protected in the workplace under statute, for example, speech related to voicing safety concerns, whistleblowing, and speaking about working conditions, discrimination, or harassment," Vanessa Matsis-McCready, associate general counsel and director of human resources for Engage PEO, told business.com. "This type of speech and participating in investigations related to such is protected activity under the federal, state, and local antidiscrimination and anti-harassment laws, not the First Amendment of the Constitution."
To ensure you are not violating your employees' right to free speech, you must first understand what laws directly apply to your location and industry. This can be a a gray area, so if you have questions about what you ethically or legally can and can't do, it is advised you speak with an experienced legal representative.
Federal laws and freedom of speech at work
You and your management team should fully understand which laws protect your employees' freedom of expression in and outside the workplace. This will help you make the best legal and ethical decisions about monitoring and managing what your employees can and cannot say.
The First Amendment
The First Amendment to the United States Constitution "prevents the government from making laws which regulate an establishment of religion, prohibit the free exercise of religion, or abridge the freedom of speech, the freedom of the press, the right to peaceably assemble, or the right to petition the government for redress of grievances."
Although this is the most commonly thought-of speech protection law, it is not necessarily the most inclusive. As previously mentioned, the First Amendment does not apply to employees working in the private sector. Private employers are legally allowed to reprimand or terminate an employee for engaging in inappropriate speech, so long as their reasoning is not discriminatory – however, this is a protection granted under the Civil Rights Act, not the First Amendment.
While the First Amendment protects free speech rights for public employees in public sectors, it doesn't do so in all instances. For example, government employees are only protected by this amendment when speaking as private citizens. As a result, they can be reprimanded or terminated if their inappropriate speech or expression occurs as part of their official duties.
The National Labor Relations Act
Small business owners should understand employee free expression protections given under the National Labor Relations Act of 1935 as well. According to the National Labor Relations Board, the NLRA applies to most employees in the private sector; however, "the law does not cover government employees, agricultural laborers, independent contractors, and supervisors (with limited exceptions)." The act applies to employers and employees, regardless of union status.
"[The NLRA] protects employee speech related to the terms and conditions of employment, including but not limited to working conditions, safety, and wages," said Matsis-McCready."Employers regulating this speech could run afoul of the law. Likewise, voicing concerns of safety, discrimination or harassment would all be considered protected activity and would thus be protected by the law."
Employers can't interfere with employees who choose to exercise their rights under the NLRA. Kathryn (Kamil) Canale, partner at Bradley & Gmelich, gave a timely example of what this type of speech might look like during the coronavirus pandemic.
"During COVID-19, if an employee posts on Facebook that their employer, a hospital, is refusing to provide its employees with the necessary personal protective equipment, the speech is likely protected," said Canale.
Anti-discrimination and anti-harassment laws
There are several other anti-discrimination and anti-harassment laws that protect employee speech at work. These laws, which are enforced by the U.S. Equal Employment Opportunity Commission, are intended to keep employees safe from discrimination in the workplace and should be strictly adhered to. Some primary federal laws include:
- Title VII of the Civil Rights Act of 1964 (Title VII)
- The Equal Pay Act of 1963
- The Age Discrimination in Employment Act of 1967
- The Americans with Disabilities Act of 1990
- The Genetic Information Nondiscrimination Act of 2008
"These [anti-discrimination and anti-harassment laws] all protect employee speech related to their rights under the specific law; for example, from retaliation for making a protected complaint or participating in an investigation," said Matsis-McCready.
Freedom of speech violations at work
Although your employees are protected from discriminatory employer retaliation, there are several instances you should monitor in your workplace. Additionally, even if your team is working remotely, you can still censor inappropriate interactions. Employers are legally permitted to use employee monitoring software to track employee behavior on company devices.
Canale listed the following free speech violations that every small business owner should watch out for:
- Threatening others or using "fighting words" to incite others
- Obscenities that are patently offensive based on community standards and that lack literary, scientific or artistic value
- Any form of harassment
- Knowingly posting false information (usually malicious in nature)
Just because an employee displays signs of heinous beliefs (e.g., racism or misogyny), doesn't necessarily mean you automatically have grounds to enforce disciplinary action. Canale said to tread carefully in these situations, and pay close attention to which laws may protect them.
"While the instinct to terminate such employees may morally be the right one, employers need to look at the facts and circumstances at the time to ensure that the termination does not run afoul of the NLRA or other state laws," said Canale. "However, if an employee threatens all employees of a particular race with bodily harm or threatens to punch their supervisor when he leaves work the next day, you are probably on solid ground for terminating the employee."
Can you fire an employee for speech outside of the office?
The combination of civil unrest, frequent protests and popular use of social media can lead to legal gray areas for many employers. In general, yes, an employer can fire an employee for speech that occurs outside of the office, as long as that speech is not protected by the First Amendment, the NLRA, whistleblower protections, anti-harassment laws, or anti-discrimination laws.
You would likely not be allowed to fire an employee for posting on Facebook that their employer is not providing face masks or protecting the safety of their employees, due to protections under the NLRA, but you may have grounds for termination if an employee posts trade secret information online.
"Employers often have social media policies and harassment and discrimination policies that cover harassing or discriminatory speech or conduct in the workplace," said Matsis-McCready. "Therefore, if a person posts harassing or discriminatory content, they could be disciplined or terminated."
Public conduct and political protests
Similarly, another relevant consideration is political speech and activity – this may be protected in some states, but not others. For example, some states permit employers to terminate an employee for attending a political protest, whereas others do not.
"Political speech and activities are especially relevant considerations during election years, and many states have law protecting employees for engaging in such," said Matsis-McCready. "Employers should tread carefully when considering disciplining an employee for their speech. They should review their anti-discrimination, anti-harassment, and social media policies carefully and confer with counsel before proceeding."