Monday, November 18, 2019

Free Speech in the Workplace Series

Last week, Americans watched the opening proceedings of the third impeachment inquiry of a President in less than a century. In a couple of months, most of the nation's attention will be on the weekly slog of the Democratic Presidential Primaries for the 2020 General Election. From mass shootings to Brexit, and protests in Hong Kong, the current state of affairs is ripe for all manner of political debate and discussion.

What happens, however, when our personal political views enter the workplace? Do employers have a right to regulate speech in the workplace? And, more importantly, what can employers do to ensure political discussion among employees during work hours does not impact workplace cohesion and decorum?

Over the next couple of weeks, The Workplace Report with Ancel Glink will explore three distinct areas of free speech in the workplace. Each post will include a summary of the governing law, a brief analysis of the issues, and practical solutions and tools for employers.

The first post will discuss the rights of at-will employees in the private sector. The First Amendment of the U.S. Constitution does not extend free speech protections at-will employees within the context of their work. The right only prevents Congress from making laws that restrict speech. Nonetheless, how much and what types of speech can an employer prohibit in the workplace? Further, in the age of Facebook, Twitter, and Instagram, what happens when an employee publishes certain content on social media during a break or off-hours?

The second post will discuss workers' (unionized or not) rights when talking about specific topics about their employment. Under Section 7 of the National Labor Relations Act (NLRA), conversations in the workplace regarding issues like wages and working conditions are considered "concerted activity" for "mutual aid and protection." In 2018, James Damore, a Google employee, was terminated after releasing a memo criticizing Google's internal diversity and inclusion policies, which included controversial comments on the biological differences of men and women in tech. The Office of the General Counsel’s for the National Labor Relations Board (NLRB) issued an advisory memo stating Google’s dismissal of Damore was proper because of his biology comments; Damore’s case is now a federal lawsuit. Although the NLRB’s general counsel memo was clear, the issue raises interesting questions. Specifically, what is the line between criticism of an employer’s policy for the benefit of fellow coworkers and inappropriate conduct rising to the level of discipline or termination?

The third and final post will focus on the free speech rights of public sector employees. The Pickering-Connick Test sets a two-pronged approach, balancing a public employee's right to speak on matters of public concern regarding their employment, but weighs that right with the office's ability to operate internally and efficiently perform its functions. However, what happens to an employee that voices an opinion of an indicted public official that's also a direct supervisor? Or speaks out against alleged impropriety in their workplace? 

Check back in for updates on our Free Speech in the Workplace Series.