“Free speech” in the workplace gaining a foothold as an employee right

By Michael J. Burns, courtesy of SBAM Approved Partner ASE

ASE’s Research Department will often take calls from employers asking if an employee who makes  obnoxious (and sometimes discriminatory) comments that offend someone can invoke a right to free speech in his defense. Usually the comments (which can be verbal or non-verbal) are on race, sex, or religious issues. The employer calls the offending employee out on it, and often is rewarded with a soliloquy on the right of free speech.

In the past, ASE’s guidance was that for private-sector employers, the employee leaves her right of free speech on the far side of the employer’s property line. First Amendment free speech rights exist in the context of the government and a citizen’s right to say what he wants without fear of government reprisal. Private employers, and employees who work for them, did not have first-amendment protections on speech in the workplace.

Most recently however, the National Labor Relations Board (NLRB) has recognized that a private employer does not have the right to curtail a certain kind of speech, even on private property. If the obnoxious or offending statement(s) was made pursuant to the employee’s right to engage in “protected concerted activity” as defined by the National Labor Relations Act (NLRA), it may be protected and the employee could avoid discipline or termination of employment for the offense.

The NLRB has been expanding the definition of protected concerted activity regularly of late. It is speech that addresses terms and conditions of employment, wages and benefits or the right to organize per the NLRA. Over the past few years the NLRB has found many employer rules and policies in breach of the NLRA if they restrict what and how an employee can communicate on these speech issues.

The second area where free speech in a private-sector workplace is protected and may hold more sway legally is under the Whistleblower Act. Employees can be protected when engaging in speech intended to be in the furtherance of the whistleblower laws. Despite outraged media coverage of whistleblowers being fired for exercising their right to call an employer out on an allegedly illegal act, employees are in fact protected from employer retaliation and can sue to be made whole if improperly disciplined or discharged.

In today’s workplace the employer is wise to hold its breath and count to ten before responding to the employee’s assertion that he can say whatever he wants because it’s free speech. The speech may not meet First Amendment standards but may be protected under certain laws depending on the issue or purpose of the statement or non-verbal communication.