How much control can an employer exercise over employee speech in the workplace?
As an initial matter, let’s talk about the First Amendment of the U.S. Constitution. The First Amendment protects speech against interference by the government; it does not protect speech against interference by a private employer. So employees of private employers cannot properly invoke their “first amendment rights” against any employer restrictions on their speech.
Private employers do need to be aware that Section 7 of the National Labor Relations Act (NLRA) prohibits interference with employee protected concerted activity, which includes workplace discussions about terms and conditions of employment (which is pretty broad, if you think about it). This would include employee conversations with one another about their wages, supervisors or work environment. In fact, if your Employee Handbook provides that employees cannot discuss their wages or salaries with other employees, that provision arguably violates Section 7 and may need to be removed.
These days, Section 7 may protect group chatter or actions about how the company is dealing with COVID-19 cases, such as the refusal by a group of employees to work in an area they believe is not properly sanitized, or the refusal by a group of employees to work near another employee who displays symptoms of COVID-19 infection.
If you thought that the National Labor Relations Act applied only to unionized workplaces, you thought wrong. Coverage under the NLRA is very broad and is based upon the dollar amounts of goods and services in interstate commerce, and different standards apply to different industries. It does not apply to independent contractors–but you’d better make sure that your independent contractors are properly classified under the most recent applicable standard. [Board law is a moving target that can change depending upon the political makeup of the Board members and Office of the General Counsel]. It is best to check with qualified labor and employment counsel to determine if the NLRA applies to your business and employees.
Other federal laws may protect employee speech about workplace safety or discrimination. However, knowingly false or malicious complaints about safety violations or discrimination may bit necessarily be protected.
So what kind of workplace speech can a private employer control? The kinds of things that have no place in the workplace, such as profanity, discriminatory slurs, or fighting words. Prohibiting talk about politics may be trickier–if employees are talking about how a politician or candidate may affect their work, job, or pay, it may be protected by Section 7.
Nevertheless, an employer can–and should–have a work rule that requires employees to talk with one another in a respectful way. In addition, it should have an effective open door policy or complaint procedure that employees can utilize if they have complaints about anything. As a practical matter, it is in a company’s interest to encourage employees to bring all complaints to the attention of the company rather than to a third party, such as a government agency or union organizer. And in the case of complaints about discriminatory slurs or harassment, such a procedure, if effective, can provide a defense against potential legal liability.
Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at firstname.lastname@example.org.
©2020 Kathleen J. Jennings
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