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Is There Free Speech at Work?

On October 15, 2012, in Heather Bussing, HRExaminer, Social Media Policy, by Heather Bussing

Is There Free Speech at Work? - by John Sumser - HRExaminer

Employees don’t have a Constitutional right to free speech or freedom of expression at work.

You know you can probably get fired for telling your boss to her face “Go to hell.” But complaining about her on Facebook can be protected speech. So what are employees’ rights to say things at work, and when can an employer control what is said?

No Constitutional Free Speech At Work 

Employees don’t have a Constitutional right to free speech or freedom of expression at work. The Constitution’s right to free speech only applies when the government is trying to restrict it. Even then, it’s not absolute. There is no free speech in your house; ask your mom. And there is no legal right to free speech or expression at work. (If you work for the government, there is a special set of rules that apply.)

So employers are generally free to restrict employee speech, at least while they are at work.

But Laws and Contracts Can Control When and What Gets Said

Some restrictions on speech are required by other laws. Laws prohibiting discrimination and sexual harassment, and laws protecting confidential medical and financial information prohibit employees from saying all sorts of things at work. Insider trading and trade secret laws prohibit employees from giving out certain information about company finances and transactions during certain times. Whistle-blowing is also protected speech, but it has to be based on the employer’s violation of a statute-not just doing something mean or unfair. Depending on the work, there may also be security clearance issues, contractual nondisclosure, and other policies that require silence.

Protected Speech Under the NLRA

Employees’ protected speech under the National Labor Relations Act (NLRA) is actually an exception to an employer’s broad rights to restrict both speech and expression at work.  Section 7 of the NLRA gives employees the right to discuss wages hours and working conditions and organizing a union.

Just calling a boss or another employee names isn’t protected under the NLRA. There is a distinction between complaints about working conditions and personal gripes. Saying the supervisor is a wing-nut, even to another co-worker, is probably not protected until there is something more that shows the employee was trying to get other employees to change working conditions. While getting rid of a bad boss would certainly change the work environment, just calling her names won’t. So name-calling is usually a personal gripe, and not protected.

What employers can’t do is issue broad policies that prohibit employees from saying bad things about the company or the people in it- because that violates the NLRA. It’s the broad policy that’s the problem, rather than the specific statement.

Figure Out What The Real Concern Is

There is often cross-over between the employer’s legitimate interest in protecting its business and following its legal and contractual requirements, and the employee’s interest in discussing wages, hours and working conditions with other people at work. It all involves the work of the company. And sometimes it’s really hard to separate them out—which is why some of the decisions coming out of the NLRB don’t seem to make sense.

When employee speech is involved, it’s best not to start with policies or edicts. Figure out what the real concern is.

If it is protecting trade secrets, avoiding SEC violations, or protecting employee safety, start there. Remind or teach employees what a trade secret is, what defamation is, or why checking in on Four Square as you make the bank deposit is a really bad idea.

Explain why any restriction is important to the company. Telling people why something matters, gives them the ability to use their judgment when they come up against a situation that wasn’t covered.  Then trust people to do the right thing.  If they don’t, deal with it on a case-by-case basis.

Focus on what happened, not whether a policy was violated.

Employers Generally Can’t Control What Employees Say Away From Work

With social media, employers are often concerned about employees posting something negative about the company, its clients or employees. So lots of social media policies try to discourage, or just outright forbid, saying bad things online. This is where the policies get in trouble with the NLRB.

Some states, like California, also have laws that protect employees from being disciplined for the things they do or say off the clock. There are narrow exceptions if the conduct directly affects the company; but it has to be a pretty big deal that causes actual damage to the company. So if someone tweets that the boss is a douche bag, they generally can’t be fired if it was on their personal account while off-duty.

Now that everyone can tweet from anywhere on their smart phones, and people are working from many places at discretionary times, this distinction will get tricky.

Also, employers are not usually liable for what their employees do off-duty unless they are controlling it. So the more an employer tries to prevent being liable for employee actions by issuing policies, requiring disclaimers, and disciplining people for what they say and do on their personal social media accounts, the more likely the employer will end up being liable.

Controlling Speech Won’t Solve the Real Problems

If what the company is really worried about is looking bad, then it should probably look deeper to see if there are things going on that would make it look bad. If so, it’s not a social media problem, it’s a management problem. And policies and controlling what people say are not going to help.

There is no way to stop current or former employees from trash talking on social media. Employers shouldn’t try. It just creates a culture of monitoring and suspicion. Discipline, denials, and drama just make it worse.  Social media is fast moving and things pop up and die quickly if they are ignored.

The best way to encourage employees to say great things about you is to be a great employer with a great service or product.

There are some companies that are horrible places to work or their products and services suck. They won’t survive social media. And that’s a good thing.

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