Free Speech is Not All That It’s Cracked Up to Be!
By now you may have seen the viral video of the woman who decided to express her views about President Trump by giving him the finger as he rode by. Or, you may have looked on as a man tried to cut in line and interfere with the President’s limo procession recently. And finally, who can forget the searing images of race hating protestors in Charlottesville, S.C.? In each of these instances, the individuals who expressed themselves so vocally (or through obscene hand gestures) were summarily fired by their employer. What gives? Isn’t there a right to speak up in public without fear of losing your job? Wasn’t peaceful protest the corner of the civil rights movement of the 60’s? What happened to “freedom of speech?” Well, as you are about to learn, that “freedom” only goes so far and with a few, limited exceptions, an employer is wholly within their rights to terminate an employee for causing a distraction or for portraying the company in a negative light.
Employers and employees need to balance two competing ideals. The first ideal holds that employees as individuals and citizens should be able to speak their mind about issues they feel are important, especially when they are not working. On the other hand, businesses should be able to insist that workers do the jobs they are employed to do and refrain from voicing opinions that cause distraction or are contrary to corporate values and policies.
Let’s start with the proposition that all speech is not “free”. Everyone knows you can’t yell “fire” in a crowded theater or auditorium without legal repercussion. The First Amendment to the Constitution protects against governmental censorship of speech. With certain exceptions, a private employer can restrict speech in the workplace. And now with the pervasive nature of social media, an employer may, with limited exception, restrict an employee’s right to express their views. Employers with carefully crafted social media policies, (which Boznos Law Office can design), or those that provide employees with company tools (laptops, smart phones, desktop computers, to trumpet their views can take steps to discipline or even terminate employees that cross the line.
One area however where an employee may be protected in espousing his/her views involve terms and conditions of employment. It may come as a surprise to many employers, but the National Labor Relations Act (“NLRA”) contains a provision that applies to ALL employers, not just those that are unionized. Known as Section 7 of the NLRA, this provision provides that “employees shall have the right to self-organization to form, or assist labor unions, to bargain collectively through representatives of their own choosing, and engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection…” The term “concerted activities” has been interpreted to include speech that relates to the terms and conditions of employment, such as wages, and working conditions. The key here is to be able to differentiate between social commentary that is purely political in nature as opposed to conversation that impacts a term or condition of employment. In the first instance, an employee has no protection and may be subject to discipline or even termination, whereas the second example is protected free speech.
From an employer’s perspective, the following steps can help:
- Implement clear and effective email and technology policies that inform employees of what personal use, if any is permitted on company technology;
- Implement an appropriate social media policy that does not run afoul of Section 7 of the NLRA and make certain comprehensive training on the policy takes place;
- Educate and train ALL levels of employees on the company’s core values and policies regarding equal employment opportunity, and prohibitions against discrimination, harassment, and hateful, offensive, or threatening speech.
And so, our poor female employee who decided to vent her political frustration against the President was rightfully terminated for her “free speech.” The driver who wanted to complain about the President’s policies was also terminated properly. Regardless of whether or not the President believed there were “good people on both sides” of the issues in Charlottesville, those that were preaching hatred or violence were justified in being terminated from their jobs. In each of these instances, the employer was correct that the speech or conduct had nothing to do with the terms and conditions of the employment and further reflected negatively upon the employer. The lesson here is that speech is only “free” if it involves a genuine workplace issue.
With over 33 years’ experience in advising employers and employees on workplace issues, let Boznos Law work with you to ensure you are ready to meet the challenges posed by the changes to the employment laws. Call Bill Boznos today at (630) 375-1958 or contact us at www.boznoslawoffice.com/contact-us through our website.