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

Tolerating Tattoos in the Workplace

Q.  We have several employees with tattoos on their necks and forearms. Can we require them to cover up?

A. Many employers have in place employee dress codes, in an effort to maintain a certain brand image, comply with health standards, and foster professionalism. As tattoos, body piercings and other forms of body art are trending in today’s culture, some employers have struggled with whether such displays are in keeping with the company’s image.  To what extent can an employer place rules on an employee’s appearance at work without violating anti-discrimination laws?

Generally speaking, employers are free to require employees to dress in a certain way. So, for example, an employer may require that an employee wear a certain uniform, cover up a tattoo or remove a nose ring.  However, employers are required to reasonably accommodate an employee’s sincerely-held religious belief, including an employee’s dress or grooming practices that are for religious purposes, unless to do so would be an undue hardship on the employer’s business operations.

The EEOC has issued guidance stating that a religious accommodation may cause an undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work. This is an easier standard for employers to meet than the “undue hardship” analysis under the Americans With Disabilities Act.

Thus, for example, it may not be a Title VII violation for an employer to require an employee of the Sikh faith to shave his beard if he (1) works with hazardous chemicals that require him to wear a respirator; (2) the beard prevents the required face seal to protect him from chemical exposure; and (3) there is no alternative device or method of doing the work that would not require him to shave his beard.

On the other hand, it would be a Title VII violation for an employer to prohibit an employee of the Muslim faith to wear her religious head covering where wearing the religious head covering does not pose an undue hardship, even if it results in complaints from other employees or customers who are not used to seeing such head coverings in the workplace.

As for tattoos and piercings, employees have no legal right to display body art, unless it is required for a sincerely held religious belief. Thus, employers may prohibit tattoos or may require employees to cover them up.  Employers also are free to create a tattoo policy that prohibits sexist and racist images, and images that promote violence, so long as the policy is applied evenhandedly throughout employees of all protected categories.

-Tracey E. Diamond & LaVelle S. King