Key Takeaways:

• An employee is not entitled to unrestricted free speech in the workplace under the U.S. Constitution

• Employers should carefully craft policies regulating acceptable and unacceptable forms of speech in the workplace

• Employers should be careful to avoid restricting employee speech that is specifically protected under state and federal law

With any change in political climate, it is hard for employers to navigate the statements of employees, both during the workday and their off time. Employees who make their political positions public often point to the First Amendment — “free speech” — falsely believing that this would allow them to make any statement, unrestricted, in any location and under any circumstance. However, employers should understand what protections do and do not apply in the workplace and should review or create policies and procedures in dealing with employee speech.

Generally speaking, the First Amendment of the U.S. Constitution does not apply to private businesses. Employers can restrict an employee’s right to free speech in the workplace without infringing on the First Amendment. However, there are additional laws to consider before restricting all types of speech. Below, we highlight two key federal laws of which to be cognizant. Note, however, this is not an exhaustive list.

For example, the National Labor Relations Act (NLRA) protects “concerted activities” for “mutual aid or protection.” Specifically, the NLRA protects speech between co-workers regarding: (1) unionizing; (2) workplace safety; (3) wages; and (4) collective bargaining. Such speech is protected both inside and outside of the workplace and the protections have even been extended to social media. Employers should be mindful not to take any action restricting such protected speech and be mindful not to draft such broadly worded policies limiting speech. In fact, it is best practice to include language that expressly carves out such protected speech in any kind of communications or social media policy.

For another example, Title VII of the Civil Rights Act of 1964 protects an employee’s right to speak out against discrimination or harassment in the workplace. This enables an employee to make a claim for discrimination or harassment, without the fear of retaliation. In fact, employers have a duty to their employees to regulate and curtail speech that could be considered discriminatory or harassing between co-workers or even between customers and employees.

Some state laws extend additional protections. For example, in California and New York, state laws prohibit employers from discriminating against employees for their political activities. Policies should be clear to restrict only in-office political activity, actions taken during company time, actions taken using company equipment and/or resources, or actions taken while holding oneself out to be speaking on behalf of the company and not extend to personal political activity outside of work.

Keeping in mind the prohibitions discussed above, it is in an employer’s best interest to promulgate an employee policy that regulates certain speech and creates a procedure should a particular employee statement disrupt the environment.

Best Practices:

1. Evaluate your local laws specifically regarding off-duty and on-duty protections for employees.
2. Create a policy both for the regulation of speech in the workplace and how to handle off-duty activities or social media posts and the impact they might have on the workplace; make sure you review the policy with your legal counsel.
3. Consider updating your dress code policy regarding T-shirt messaging. If it restricts messaging, it should be tied to a legitimate concern like professionalism or safety. Employers should uniformly ban all messaging and avoid picking and choosing the messaging they disagree with.
4. Train your managers to be able to enforce the policies and intervene early to prevent escalation of an issue. These managers should be trained to react neutrally and equally in all scenarios.
5. Be sure to enforce all policies neutrally and equally across the entire workforce — you must always be consistent.
6. Be transparent with your employees. Explain the focus on providing a welcoming, distraction-free environment and that the goal is not to silence ideas. Consider issuing informative correspondence or holding a training session to explain how the First Amendment does not apply to private businesses.
7. Document any action taken against an employee pursuant to your policy and inform your legal counsel, preferably before taking action, if possible.

For more information or immediate guidance, contact:

• Christine E. Taylor
• Cali L. Chandiramani
• Caroline J. Berdzik
• Scott R. Green

Or another member of the Employment and Labor practice.