Can Employees Say Whatever They Want at Work?
The following article was first posted on Berchem Moses PC’s Labor and Employment Law Journal. It is reposted here with permission.
Can an employer fire an employee for cursing out the boss? Complaining about pay? Backing the “wrong” political candidates? Posting racist rants on Facebook?
Employers must be prepared to navigate the complicated legal terrain of employee speech protections while maintaining order in the workplace.
This article busts some common myths about workplace speech to keep you on the right side of the law.
Myth #1: Only public-sector employers owe First Amendment protections to employees.
This is true in most states, but not in Connecticut.
Connecticut has a specific statute that affords constitutional protections under the First Amendment of the U.S. Constitution and similar provisions of the Connecticut Constitution to employees in the private sector, provided the employee’s activity does not substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employer and the employee.
In many cases, employees speaking on matters of public concern are protected from disciplinary action or termination of employment based on such speech.
While this is not limited to political discourse, employers need to recognize they cannot penalize employees for speaking out about political issues, backing candidates the employer dislikes, and the like.
If the discourse is occurring when the employee should be working, the employer can address the fact that the employee should be working rather than talking about non-work matters, but should not treat political speech differently from other subjects.
Myth #2: Some of my employees constantly complain that they are underpaid and that they think their boss plays favorites. It’s creating a lot of negativity in the workplace, so I can tell them they have to stop or they’ll be disciplined.
Generally, employers are prohibited from stopping or disciplining this kind of conduct because it likely constitutes “protected concerted activity” under the National Labor Relations Act and corresponding state law applicable to public sector employers.
Contrary to popular belief, these laws apply even in non-union settings.
Managerial employees do not have the same protections as non-managerial employees in this regard.
Whether complaints about working conditions lose their protection due to profanity, presence of customers, use of slurs, etc. can change, so employers must not assume that they can say they are disciplining because of the language or context rather than the underlying statement.
Cursing out the boss may, in some instances, be protected under these laws, if it comes as part of protected concerted activity.
The standards under these laws change frequently (usually based on the political party controlling the National Labor Relations Board at the time), so employers should be very cautious in this area and consult competent legal counsel.
Myth #3: Employers cannot take action based on an employee’s personal social media posts.
If the speech in the social media post is otherwise protected by law (such as complaints about working conditions), then the employer cannot take disciplinary action.
However, an employee who uses Snapchat to sexually harass a co-worker is subject to discipline.
An employee who posts racist comments on Facebook also may lawfully be subject to discipline.
However, in the case of unionized employees who usually may only face discipline or termination for “just cause” (or other employees subject to this higher standard by law or contract), the employer will need to show a more direct connection between the conduct and the workplace before taking action based on off-duty conduct.
Myth #4: False accusations are never protected by law.
Employees who make good-faith accusations of discrimination, harassment, unsafe work conditions, and the like are generally protected even if the underlying conduct is not substantiated.
In certain cases, employers may even be unable to take action against an employee for allegations not brought in good faith.
In such situations, it is imperative to consult competent legal counsel before taking action.
Employers are often torn between efforts to maintain harmony in the workplace and honoring employees’ free speech rights in challenging situations.
About the author: Rebecca Goldberg serves as senior counsel with Berchem Moses PC, focusing on labor and employment matters in state and federal courts, and administrative agencies.
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