In the wake of a number of controversial and highly publicized events across the country, many employers have been forced to evaluate their internal policies related to employee conduct and free speech. As employee terminations dominate the headlines, and the rise of social media transforms the extent to which employees may share their views on controversial topics, employers are faced with unique challenges. Namely: when, and to what extent, can an employee be terminated for out of office conduct that is inappropriate or reflects poorly on the organization.
The “at will” nature of the employer-employee relationship holds that an employee can generally be fired at any time, for any reason. Although the general rule is subject to a number of exceptions, which include terminations based on protected classes such as age, race, religion, or gender, no exception prohibits a non-discriminatory termination based on employee conduct that is deemed by the employer to be highly offensive or detrimental to the workplace environment. For that reason, employers and employees alike should understand that conduct outside of the workplace can have consequences.
The scope of free speech and First Amendment protection is among the most common points of misconception for many in the workforce. Although the First Amendment protects free speech, it serves only as a protection from government restrictions of speech. As such, it is generally inapplicable to private employers, and may only serve as the basis for a lawsuit against a public entity, or the agent of such entity. For this reason, the extent of free speech protection that an employee may be entitled to ultimately depends on whether the entity is a public or private employer, or whether an otherwise private employer may be considered public for first amendment purposes depending on the type of work or employment relationship at issue.
The Supreme Court recently strengthened protections for government employees, holding that a public employee is entitled to challenge a termination where the employer acts with a desire to prevent the employee from engaging in political activity protected by the First Amendment. The Court held that the Constitution prohibits a government employer from discharging or demoting an employee on the basis that the employee supports a particular political candidate. However, these protections are not so broad and absolute that they preclude public employers from terminating employees for other types of speech. Similar to private employers, public employers retain the ability to discipline or terminate employees for making inflammatory or racist comments, or engaging in activity that reflects poorly upon the employer. This includes speech or behavior that would create a pervasively hostile or intolerable work environment.
Private employers enjoy much broader discretion to set and maintain policies related to employee speech. Because the First Amendment is generally inapplicable to private entities, private employees lack the ability to bring suit against an employer for an infringement of constitutional rights, except in the limited circumstances where a private employer is sufficiently entangled with a government entity such that they might be considered public for the purpose of first amendment protection. Employers, of course, have an inherent interest in protecting their reputation and distancing themselves from employee behavior that could reflect poorly on the organization. Most “at-will” private employment contracts allow the employer to terminate the employee without cause—so long as the termination is not retaliatory or discriminatory based on a protected class or activity. Private employees should be advised that their free speech rights are extremely limited, and subject to applicable company policies regarding employee speech and social media use.
As a general rule, it is imperative for both employers and employees to be conscious of off duty conduct, as well as content being posted online. Employers should have a specific policy related to employees’ off duty conduct and use of social media, and that policy should be widely established and disseminated within the workplace. Whether this policy is included in a handbook, or distributed as an internal memo or email, employers should set clear expectations for employees to follow. The policy should be fair, content-neutral, and applied consistently. Policies that are applied inconsistently can give rise to employee claims of inequitable or disparate treatment.
Being proactive in setting clear, straightforward expectations is a best practice for both employers and employees, as it provides clarity and ensures that everyone is on the same page. In the event that a personnel situation does arise as a result of employee behavior, both parties have an objective policy by which to measure the behavior, as well as clear standards for associated discipline.
Although quality, proactive policies provide clarity and help mitigate the frequency of disputes, there is always an associated risk of litigation. For specific, case-by-case policy or termination inquiries, it is always best to consult with an employment attorney.
Chris Morgan works closely with clients to help them navigate the complexities of employment and labor law and is a published author in a variety of media, including editorials on economics, public policy and civic engagement for The Oregonian, The Portland Tribune, The Spokesman Review, The Columbian and Northwest Lawyer Magazine.