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“But it’s a free country!” Can Employees Really Say Anything They Want at Work?

Published on 5/30/2017 12:00:00 AM
We know the U.S. Constitution establishes the right to free speech, but does this include freedom of speech in the workplace? This article discusses the topic and offers insights for employers dealing with challenging rhetoric in their businesses.

As Americans, we have a right to free speech. But does that protection apply to the workplace?

Many people wrongly assume the First Amendment to the U.S. Constitution entitles them to express their views whenever and wherever they want. However, regarding freedom of speech in the workplace, this protection extends only to public sector (i.e., government) employees. With few exceptions, private employers aren’t required to let free speech reign throughout the workplace.

Federal Law Allows Some Freedom of Speech
in the Workplace

The National Labor Relations Act (NLRA) gives private-sector employees the right to discuss their working conditions, which is considered “protected concerted activity.” They can share information about pay, benefits, safety and other work-related issues — and they can do it in the break room, at happy hour
or on social media (like Facebook and Twitter).

Here’s a real-world example:

Situation: A group of employees who worked for a retail store in a touristy area of San Francisco were concerned about their safety due
to their store closing an hour later than other nearby stores. After unsuccessful discussions with the manager and later, the owner, the employees posted their frustrations on Facebook. An employee who saw the posts showed them to the owner and, subsequently, the other three employees were fired.

Ruling: The National Labor Relations Board reviewed the Facebook posts and determined they were acceptable. The employees were discussing the store closing earlier based on legitimate safety concerns, so the posts were considered protected under the NLRA. It was determined that the employer committed an unfair labor practice by firing the employees.

What Can’t Employees Say?

There are limits to what the government allows, however. The following employee workplace speech is not legally protected:

Sharing confidential company information or trade secrets
Controversial political views
Rude jokes or comments

As a responsible business owner, you also need to be diligent about preventing harassment and discrimination. Therefore, any offensive remarks about race, gender, religion, age or sexual orientation should be banned. It doesn’t matter
if it happens at your workplace, at an off-site conference or on social media.
If an employee makes discriminatory comments or creates a hostile environment for others, discipline is warranted.

Policies Can Help Set Limits on Workplace Speech

As a private employer, you can — and should — set parameters on employee workplace speech that doesn’t fall under the NLRA umbrella. Outlining company rules and expectations in a comprehensive employee handbook is a critical first step in letting employees know what’s permitted.

Your policies should clearly explain that you won’t tolerate intimidating, discriminating or harassing behavior, or anything that interferes with workplace productivity. If political discussions fall under those parameters, specify that.

It’s important, too, that guidelines regarding freedom of expression be carefully crafted and uniformly enforced so all employees are treated equally. Do your part to inform employees, and then trust them to do the right thing. Exercising a certain amount of control is appropriate, but you also need to be reasonable
and allow employees to engage with each other.

Protect Your Business with Legally Sound Policies

When establishing workplace policies, such as anti-harassment, social media
and political discussions policies, you want to be sure they are written in a legally compliant way. Using an employment attorney is always an option, but can
be costly.

For a more affordable approach, consider using do-it-yourself software, such as Gradience Handbook Software. This low-cost solution includes more than 100 policies that have been crafted by ComplyRight attorneys and are guaranteed to comply with current federal and state regulations. Answer just a few questions about your business and the software does the rest, compiling a legally sound employee manual with the recommended policies for your business and industry.

Handbook Software
Create an employee handbook in less than a day
Jaime Lizotte
Presented by: Jaime Lizotte,
HR Solutions Manager
Would it surprise you to learn that more than half of small-business employers lack full confidence in their awareness of employment laws? And that most of them rely on non-experts for advice on HR compliance topics? Join us for a fascinating, one-hour summary of the statistics and observations about how small businesses just like yours feel about – and deal with – increasingly complex labor laws.