With increasing frequency, employers are raising the question about what can (or can’t) be done with employees who speak about polarizing issues, whether at work or in a way that affects the work environment. This question is arising often because of our current social and political climate. The legal and practical implications are complex. It is appropriate and timely to provide some background on the law relating to this free speech issue as there are widespread misconceptions.
Workplace restrictions on free speech
Under both state and federal law, employers are permitted to regulate employee speech under a wide variety of circumstances. Those rights extend to employee speech at work and employee speech away from work if the employee speech may have an impact on the workplace. If you are wondering about employee Constitutional rights, keep in mind that the First Amendment to the U.S. Constitution, and most similar State Constitutional protections, do not limit the right of private employers to restrict the speech of their employees in any way. Caveat: employers in the public sector face more limiting restrictions when regulating employee free speech.
Examples of the type of speech that can be regulated by employers include: speech that may have a negative impact on customer relations, involves the disclosure of confidential business information, or violates employer rules concerning harassment or discrimination.
How far can an employer go with speech policies?
What about speech that does not violate employer rules or threaten harm to business but has the potential to cause a strong reaction or confrontation at work? Can an employer restrict employees from discussing potentially inflammatory political or social issues at work? The answer is yes, with the important qualification that employers must enforce the restrictions even-handedly and be alert to enforcing rules that disproportionality restrict members of protected classes.
The lines can be blurry. For example, can employers limit or restrict discussions of the recent Supreme Court decision concerning abortion? What if an employee couches the discussion in terms of their religious beliefs? Can an employer restrict discussions of the Black Lives Matter movement or more generally of alleged police misconduct toward minorities? Setting aside the law, what are the potential employee relations implications when an employer presumes to limit what employees can discuss at work?
These are among the legal and employee relations considerations and serve as the backdrop upon which employers should prepare their policies related to employee free speech, including the use of social media. The policies should be applied equally to all employees in the organization, regardless of the viewpoint that may be expressed. In other words, the policies must be non-discriminatory.
It is wise to seek counsel when considering a policy that effects your workforce in such a significant way. Our team of labor and employment practitioners stand ready to assist with helpful language suggestions and experienced insight.