Free Speech in the Workplace
Unless you’ve been living under a rock, you’ve heard about speech codes at campuses and how the tension between those codes and the First Amendment has led to conflicts at Yale and the University of Missouri. Several of my clients have contacted me lately asking whether those conflicts will metastasize and start showing up in the workplace and what their rights are to restrict employee speech.
Let’s start with some basic principles. The First Amendment restricts governmental action. It does not restrict the actions of private individuals or corporations. As such, in most instances an employee of a private (non-public) employer cannot assert that speech codes or restrictions violate his or her First Amendment rights.
If, however, a private employer’s restrictions implicate protections provided by other laws, then First Amendment issues may come into play. For example, if a private employer restricted its employees from disclosing illegalities in the workplace, then the Whistleblower Act would be implicated, and the restriction would be impermissible. Or, a private employer may not restrict its employees from criticizing the employer in public because the NLRB generally recognizes this as a right guaranteed to employees under the National Labor Relations Act. Absent such considerations, here are some examples of private employees being legally fired for their speech:
• Complaining about chemical pollution in workplace air;
• Truck driver complaining about unsafe brakes; and
• Supervisors who refused to wear anti-union buttons
Again, it’s been black letter law for years that garden variety complaints over workplace restrictions of discussions over religion, politics or other matters simply don’t give rise to First Amendment protections.
But there may be some indication that this black letter law is changing. Do you recall Brendan Eich, former CEO of Mozilla, who resigned after being pressured over his donation to California’s Proposition 8 which banned same-sex couples from marrying? What if he had been fired or alleged constructive discharge? Sure, the employer would argue that the doctrine of “at will” employment allows for termination for any reason other than age, race, sex, sexual preference or religion. But what if Eich claimed his opposition to Proposition 8 was based on religious beliefs and that firing him violated the 1964 Civil Rights Act which prohibits employment discrimination based on religious expression? Our courts and legislatures have not provided any definitive answers yet, but the expectation is that these issues will start popping up in the near future.
But let’s put such theoretical issues aside for the moment. Assume that you work for a public employer – the state or the federal government. The United States Supreme Court has held that public employers cannot require their employees to surrender their Constitutional rights. Instead, it has held that the First Amendment protection of a public employee‘s speech hinges on the balance “between the interests of the employee, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” In short, public employees may freely speak unless that speech is too disruptive in the workplace.
How is this determined? First, one has to determine if the speech relates to a matter of public concern or private grievance. If the latter, work place discipline based on speech related to private matters does not implicate the First Amendment. Workplace speech is only protected if it is a matter of public concern. A matter of public concern is defined as “any matter of political, social, or other concern to the community.” For example, a police officer who complained over inadequate training on use of force would be discussing a matter of public concern. Further complicating matters, the Supreme Court has held that statements made pursuant to official job duties are not protected speech, even if they relate to matters of public concern.
Second, if the speech relates to a matter of public concern, one has to ask whether the right of free speech outweighs business reasons restricting that speech. When speech impairs discipline or work relationships, or affects job performance or the “administration of public service,” it interferes with a public employer’s interests. So, the government is therefore allowed to restrict employees from using offensive speech to the public or co-workers and to discipline employees for violating the restrictions. Or, although normally a matter of public concern, our courts have held that an employee’s criticism of hiring decisions does not outweigh the public employer’s interest in avoiding workplace disruption.
It’s impossible to predict how the law in this area will develop or if there will be a backlash over recent incidents at campuses across the United States. The best advice I can give is to, as always, use reason and common sense and to think before you speak. As Bob Dylan said, “The times they are a changin’.”
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