In light of political events transpiring throughout the world, employers have come under increased scrutiny for how they do, or do not, respond to concerns regarding employee speech.
Although employee speech on contentious issues may occur within the physical work environment, it often occurs outside of both the workspace and normal working hours. Employers are then left to consider how, and to what extent, they can react in light of federal and state laws which protect certain types of speech.
Here are some helpful guidelines for employers to keep in mind.
Political Speech is Not Protected
Both federal and state laws cover protected class status — including an individual’s race, national origin, age, or religion. However, an employee’s political affiliation is not a protected class status recognized at the state or federal level. Accordingly, in most instances, employees can be disciplined for speech deemed by their employer to be harmful, offensive, or otherwise objectionable, irrespective of that employee’s political affiliation.
The First Amendment does not Apply to Private Workplace
In general, the protections of the First Amendment as they relate to freedom of speech and expression do not apply to private employers. This is because the First Amendment protects citizens from government restrictions on speech, not private action. Accordingly, employees who work for private employers do not have a First Amendment right to freedom of speech in the workplace and can generally be disciplined for speech or other conduct which an employer determines to be objectionable. That includes both conduct that occurs on the physical work premises, as well as speech that occurs outside of work, including comments made online.
Notwithstanding, employee speech often implicates separate federal and/or state laws which may protect employee speech.
Whistleblower Protections
Under both federal and Oregon state law, employers are prohibited from taking adverse employment action against employees whose speech is considered “whistleblowing.” Speech protected by whistleblower protection laws includes reports of unlawful employment practices, unsafe working conditions, or violations of local, state, or federal laws. Importantly, it makes no difference whether the report is ultimately substantiated; the employee’s report must only be made in good faith to be protected. For example, if an employee complains of a hostile work environment based upon a series of politically charged comments made by a co-worker, that complaint is likely protected under both federal and state whistleblower laws.
The National Labor Relations Act (NLRA)
The NLRA also provides certain protections for employees, whether in a unionized workforce or not. Under Section 7 of the NLRA, employees have a right to engage in concerted activities for mutual aid or protection. “Concerted activities” include any instance in which multiple employees are working together or where one employee is taking action on behalf of the group. Such activity is taken “for mutual aid or protection” when it is related to the terms and conditions of employment (such as wages or working conditions).
The NLRA protects not only in-person and on-site speech but also reaches concerted activity that takes place over social media. As such, employees have the right to address work-related issues and share information about pay, benefits, and working conditions with coworkers on social media.
Accordingly, employment policies that are construed as restricting these rights would run afoul of the NLRA irrespective of the fact that they are not otherwise protected by the First Amendment. Employees cannot and should not be disciplined for speech that might constitute concerted activity for mutual aid or protection.
With that said, so long as an employer does not restrict an employee’s rights under the NLRA or under other federal or state laws, they may regulate and discipline an employee for speech or conduct, including speech or conduct which occurs off duty or on social media. For example, employers may establish a policy against employees engaging in harassing or offensive speech.
Best Practices
In general, private employers are free to regulate the speech of their employees both at work and outside of work. However, employers considering discipline against an employee should be careful to evaluate whether the underlying speech at issue implicates separate protections under the NLRA, and/or other protected forms of speech (such as whistleblower complaints).
Further, employers should seek the advice of counsel before implementing policies regarding employee speech to ensure that the language does not accidentally run afoul of any federal or state legal protections.
Chris Morgan is a partner at Barran Liebman LLP. He specializes in complex employment advice, strategy, and litigation. Contact him at 503-276-2144 or cmorgan@barran.com.
Lex Shvartsmann is a law clerk with Barran Liebman LLP. She partners with attorneys in client trainings, legal research, and drafts of employment policies and handbooks. Contact her at 503-276-2111 or lshvartsmann@barran.com.
