Does Free Speech Exist in the Workplace?

The First Amendment protects our right to free speech. It’s importance as a pillar of our democracy is something we’re taught in grade school, and a virtue we’re told to never take for granted.
 

Earlier this month, Google made headlines when it terminated an employee for circulating an internal “manifesto” in which he claimed women may be less suited for certain engineering roles than men. Among legal scholars and the general public, the firing rekindled a nationwide debate on whether the First Amendment applies to the workplace.
 

Did Google act within its rights as an employer? Do our rights as free individuals differ from our rights as employees? These are simple questions with complicated answers. Read on to learn what federal and state employment laws say on the matter.

 

In the Workplace

 

Right or wrong, private employers generally have the authority to discipline or terminate an employee for any reason. This is because of something called “at-will employment,” or a contractual employer-employee relationship that allows either party to go separate ways at any time, without just cause. As long as the termination does not violate an existing federal or state law, it’s perfectly legal.
 

Simply put, while the U.S. Constitution may protect your right to free speech as a public citizen, it offers little to no protection to you as an employee.
 

While the above applies in most cases, at-will employment does have its limits. Nationally, Title VII of the Civil Rights Act makes it unlawful to discriminate against an employee due to their race, color, religion, sex and national origin. Over a dozen states and nearly 200 local governments also prohibit sexual orientation and gender identity discrimination. While party isn’t a protected class, some states, like California and New York, have separate protections limiting an employer’s right to terminate based on political leanings, unless a tangible business impact can be demonstrated.
 

In addition to protecting workers, these federal and state civil rights laws indirectly encourage employers to take action against those who vocalize prejudiced beliefs in the workplace. The Equal Employment Opportunity Commission (EEOC) defines unlawful harassment—which employers can be subsequently held liable for fostering—as the following:
 

“Harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.”
 

In other words, by permitting employees to make discriminatory statements in the workplace, employers could seen as complicit actors and be held liable for violating federal law.
 

There are union-specific rules to consider as well. Union members will often have separate contracts that limit the scope of traditional at-will agreements. Additionally, under federal law, non-union employees cannot be penalized for wearing a union insignia or for attempting to organize while on the job. These activities are protected under the National Labor Relations Act, which as we’ll soon learn, can even be applied outside of the office.

 

Outside the Office

 

While employers may wield some control over what’s said in the office, what happens when employees speak out in public or on social media?
 

Current events have made this discussion particularly relevant. After a violent white nationalist rally in Charlottesville, Virginia earlier this summer, the photos, names, and even phone numbers of certain participants were shared on social media. The desired intent was to inform these individuals’ employers of their participation, potentially leading to disciplinary action or even termination. Indeed, under federal and most state laws, it would be legally permissible for an at-will employer to do just that.
 

A small minority of states limit an employer’s “right to fire” in these situations. California, Colorado, New York, and North Dakota prohibit employers from firing or even disciplining an employee for engaging in a lawful activity on their own time. Peaceful participation at a rally, no matter how repugnant the cause, is technically legal. There are limitations to these rules, however. If an employee has engaged in violent (and therefore unlawful) conduct, they aren’t protected from termination at all. Additionally, if a company can successfully argue that an employee’s off-duty conduct ended up causing a tangible, negative impact on the business, it may be able fire him or her later on.

 

Learn how to navigate HR and payroll compliance across state lines with the Ultimate Guide to Multistate Employment.

 

The same rules generally apply on social media as well. Courts have ruled that employees who harass coworkers or post hate speech online could be construed as creating a hostile work environment, and be subject to discipline. Likewise, under federal law, sharing company trade secrets online may also be a terminable (and litigable) offense.
 

Even so, there is an important caveat to consider: if the social media post in question concerns working conditions, it may actually be unlawful for an employer to take action. The National Labor Relations Board (NLRB), a federal agency that enforces union and non-union worker protections, has opined that employees cannot be terminated for posts that relate to a protected activity, like complaining about working conditions or attempting to get other co-workers to unionize. The NLRB, which periodically publishes memos on this subject, offers two example incidents from 2012 for employers to reference:
 

  • A luxury car salesman was fired for sharing a photo of an embarrassing car accident at a nearby, co-owned dealership. Because the post did not involve a protected activity and had nothing to do with working conditions, the NLRB ruled that the termination was indeed lawful.

     

  • Five employees were fired for engaging in a public Facebook conversation about another co-worker who had been planning to complain about their job performance. The NLRB ruled that because the discussion related to job performance, the employees’ discussion was legally protected.
     

The NLRB is headed by five members who each serve four year terms. Because members are appointed by the president, the leaning of the agency and its interpretation of the law can change over time. When handling a termination related to social media, always be sure to consult with an attorney who is familiar with recent NLRB rulings.

 

Best Practice

 

You now know what you’re legally allowed to do—but what should you actually do?
 

Whether it means amending your company values or revising your employee handbook, draw a line in the sand: discussion that demeans individuals belonging to a specific race, gender, or other protected trait is strictly off limits. Allowing these conversations to fester only serves to foster a hostile work environment, and potentially provoke the ire of enforcement agencies like the EEOC. Pay close attention to what’s happening in the news, as office conversation often mirrors what’s in the headlines.
 

That said, when it comes to politics, don’t be like the boss who fired an employee for sporting a Kerry/Edwards bumper sticker on her car. Politics’ share of our attention is only growing, so trying to curb its presence in the workplace may prove a fruitless exercise. Permit employees to discuss politics, but periodically remind them to keep it civil and to leave subjects like religion and race out of it. Election season is an ideal time to post a friendly reminder on your company newsfeed.
 

If you do need to discipline or terminate an employee, be sure to keep extensive documentation on hand. If he or she subsequently claims that your action was based on a protected trait, you’ll be legally equipped to show otherwise. Familiarize yourself with local laws and always consult with legal counsel before moving ahead with a potentially dicey personnel decision.