Free Speech and Expression in the 2021 Workplace
While the presidential election may be in the past, conversations on political and social issues are not. As the new Presidential Administration takes the helm, the pandemic continues, and significant political division persists, conversations on political and social issues are commonplace in many workplaces across the country. Manufacturers are still grappling with the issue of whether and to what extent they can restrict employee speech and expression in the workplace. Can employees discuss political or social issues at work? What happens if it causes tension and distraction at work? Does it matter if it occurs on working time?
Generally, there is no right to free speech in private workplaces since the First Amendment of the U.S. Constitution does not apply to private sector employers. However, such rights may be granted under state laws which vary greatly. Some state laws protect speech and expression, prohibit employees from participating in politics or becoming political candidates, prohibit employers from influencing employees’ votes, prohibit discrimination based on political affiliation of employees, among other laws. For example, under Connecticut law, both public and private employees have free speech protections and employers are prohibited from disciplining or discharging employees for exercising their free speech rights with certain limitations. Specifically, free speech is permissible assuming that it does not interfere with the employee’s job performance or relationship with the employer and addresses a matter of public concern such as terms and conditions of employment, social justice, among other reasons. Therefore, even under Connecticut law, conversations or expressions that disrupt working time and operations, may not be protected.
Certain employee speech is also protected under the National Labor Relations Act (NLRA). The NLRA, which applies to both unionized and union-free workplaces, protects employees’ right to engage in “protected activities” for the purpose of mutual aid and protection. Under the NLRA, employees have the right to engage in speech and expression related to working conditions which could include discussing compensation and benefits, supporting social or political causes such as fair wages, among other issues. Some state laws also protect such speech. Employers are generally not permitted to maintain rules prohibiting such speech except in specific circumstances. Speech related to the workplace and working conditions may also be protected under whistleblower statutes designed specifically to encourage employees to raise such issues.
There are further considerations that employers may want to evaluate before they take adverse action against an employee for speech or expression in the workplace. Actions taken consistently and uniformly across the company are less likely to run afoul of state or federal anti-discrimination laws. Further, employers that may face issues related to speech in the workplace, might explore implementing a policy addressing workplace standards as well as training managers/supervisors with regard to appropriate practices regarding employee communication in the workplace.