Regulating Speech at Work

Q: Can a private employer limit its employees’ speech and political activity in the workplace?

A: Yes, but not speech that is considered part of a “concerted activity.”

Last year, former San Francisco 49ers player Colin Kaepernick, kneeled during the national anthem to bring attention to racial injustice. On Saturday September 23, 2017, in a series of tweets, President Trump demonstrated his displeasure with NFL players who do not stand during the national anthem and called for their termination.  In response to President Trump’s comments, NFL players across the country have been “taking a knee,” locking arms or staying in the locker room during the national anthem.  These demonstrations have generated a lot of discussion about whether a private employer can limit an employee’s speech and political activity in the workplace.

Although the right to freedom of speech is fundamental, it is not absolute. The First Amendment prohibits the government from interfering with an individual’s freedom of speech and religion; however it does not protect private-sector employees.  There is a common misconception that freedom of speech applies to anything and everything an individual has to say, but the First Amendment protections only apply in cases of government interference.

Private-sector employees are typically employed at-will, meaning that their employers can fire them at any time for any reason, with or without cause. There are many exceptions to the employment at-will doctrine, but the First Amendment is not one of them.  As a result, as a general matter, a private sector employer may discipline or even terminate an at-will employee for statements made both inside and outside of the workplace, including statements made on social media posts, blog posts, political opinions, t-shirts, and bumper stickers.  But the employer’s right has limits.  Under federal labor laws, an employer cannot discipline or fire an employee for speech that involves “concerted activities,” such as discussing the terms and conditions of employment, wearing a union shirt, discussing wages, and/or forming a union.

Even though the First Amendment does not apply to private workplaces, employers should be careful when regulating speech. Although an employer may have a right to regulate employee speech on political or social issues, doing so may have a detrimental effect on the workplace.  And, there are times when employers have a duty to regulate employee speech.  For example, employers have a responsibility to maintain a work environment that does not violate laws prohibiting discrimination and harassment, or create a hostile environment.  Employers often have to investigate and act in response to speech in the workplace, and even outside the workplace, that creates or contributes to a hostile work environment from the standpoint of race, sex and other protected characteristics.

Employers should consult a labor and employment attorney if they have any questions about what speech is appropriate to regulate, and for assistance in establishing policies and procedures that govern speech in the workplace.

Renee Manson

Fighting Negative On-Line Reviews by Ex-Employees

Q.  A former employee has posted a negative review about our company on a social media website. Is there anything we can do about it?

A.  While social media is a powerful tool for promoting your company’s brand, negative reviews can be equally powerful in affecting the company’s reputation. When the negative review is by an employee or former employee, the review is particularly galling.

Unfortunately, employers have little recourse. While many employees have social media policies prohibiting employees from commenting about the company, the NLRB does not allow such policies to chill an employee’s ability to complain about the terms and conditions of employment on social media.  Moreover, the company’s ability to control social media activity ceases once the employee leaves the company or is terminated.

But there are a few things you can do. First, be sure to set an alert so that you are aware of all comments made about the company online.

If the post is made by a current employee, use this as a red flag that something may be amiss about the employment relationship. Meet with the employee and give him or her a chance to air his or her concerns.  Then ask the employee if he or she would be willing to take down the post and address the issue internally instead.

If you are offering a severance package to a departing employee, consider adding a nondisparagement clause to any separation agreement that would prohibit the former employee from making negative comments or otherwise denigrating the company’s reputation. Consider paying the severance over time, rather than in a lump sum, to create a disincentive for the former employee to violate the nondisparagement clause.

Assuming there was no written agreement and it is a former employee who is doing the negative posting, you will have to consider whether it makes more sense to ignore the post or respond to it. If you do choose to respond, be careful not to personally attack the individual, but instead focus on the comment and set the record straight.  While it is not a battle easily won, depending on how damaging the post is, you may also consider speaking with legal counsel about the possibility of an action for defamation.  Moreover, if the negative comment also reveals company trade secrets, you will need to analyze the situation with your counsel and consider sending a cease and desist letter and filing suit.

Finally, it is always best to take a proactive approach. Remind employees of the powerful impact social media can have on your business.  Encourage your employees to become a “brand ambassador” and  “like” the company on social media and share company achievements.  After all, a negative comment will have much less of an impact if it is surrounded by lots of positive, reputation-enhancing messages in cyberspace.

–Tracey E. Diamond