Free Speech Limits in the Workplace
Employees who make comments and express opinions that irritate, offend or anger their colleagues are a major source of workplace conflict. The same is true of employees who argue with supervisors, using inflammatory or profane language.
When employees who express themselves in these ways are told to stop, they often respond: “I have a right to say whatever I want. Free speech is guaranteed by the U.S. Constitution.”
Actually, employees have only a limited right to free speech in the workplace and while on duty for a private employer.
For example, in one case, a federal appeals court ruled that certain First Amendment free speech protections do not apply to employees in the private workplace.
Facts of the case: Coburg Dairy hired Matthew Dixon as a mechanic. The Charleston, S.C. company gave Dixon a copy of its anti-harassment policy, which states that “…harassment may take many forms, including…visual conduct such as derogatory posters, cartoons, drawings or gestures.”
The policy states that an employee who violates it is subject to discipline up to, and including, termination.
Dixon was an active member of the Sons of Confederate Veterans. He placed two Confederate flag stickers on his personal toolbox that could be seen by fellow employees. An African American colleague complained that he found the stickers offensive. The employer demanded they be removed. Dixon refused, asserting that it was his constitutional right to display the flag.
The employer offered to buy Dixon a new, unadorned toolbox. He refused, saying his heritage was “not for sale.” So the company fired Dixon on the grounds that he violated its anti-harassment policy.
The federal appeals court ruled: “. . . Dixon may have a constitutional right to fly the Confederate flag, however, that right is not unlimited. An individual may not exercise general rights of free speech on property privately owned and used nondiscriminatorily for private purposes only.” (Dixon v. Coburg Dairy, Inc., No. 02-1266, 4th Cir., 2003)
Bottom line: Employees don’t have an indiscriminate right to express themselves any way they like in the workplace or while doing work for an employer.
There are several situations when employees erroneously believe they have a right to free speech. This faulty belief can lead to damaging confrontations. Here are some situations that can give rise to such conflict:
Political expression. This can take the form of intense discussions and arguments between employees, resulting in bad feelings, wasted time and interference with performance.
Union organizing efforts. This is a touchy area. Employees do have the right to talk with each other about work conditions and about the pros and cons of unions. Keep in mind that union organizing efforts are regulated under federal labor law. So before limiting or prohibiting union talk among employees, consult with your attorney.
Religious speech and symbols. Employees have a legally protected right to their beliefs and to religious expression, unless they interfere with the legitimate business interests of the employer. Employers can also limit and prohibit religious speech and behavior when they upset or harass fellow employees.
Gang symbols and insignias displayed in the workplace. Because gang-related items can create tension and conflict, and even lead to violence in the workplace, employers have a right to prohibit them.
Harassing and intimidating speech and symbols. This type of offensive expression can range from posting sexually explicit calendars in the workplace to verbal insults hurled at supervisors.
Best approach: Have a specific policy in your employee handbook requesting courteous, respectful behavior in the workplace. Clearly spell out that you do not tolerate conduct that is intimidating, hostile, offensive or harassing, as well as behavior that interferes with an employee’s expected performance.
Employees do have a legal right to express themselves in situations protected by law or public policy. For example, employers have an obligation to maintain safe working conditions and comply with OSHA regulations. Similarly, employers must comply with a number of laws administered by the EEOC to prevent discrimination. If employees believe their companies are in violation of federal laws or regulations, they have a legal right to speak out. And employers cannot retaliate against them for doing so. Another example: If an employee learns that the company is cheating shareholders or the IRS, the employee has the legal right – and may have the legal obligation – to “blow the whistle.”
Note: Public employees who work for federal or state institutions have more freedom of speech than employees in private industry but there are still boundaries.
Free Speech in Cyberspace
Employees obviously don’t have a constitutional right to use the Internet at work for any purpose but one case has significant implications for companies operating corporate e-mail systems. In a groundbreaking Internet law case, the California Supreme Court refused to allow Intel to block an angry ex-employee from sending e-mail messages into its computers criticizing the firm’s labor practices. On six occasions after being fired, Ken Hamidi sent disparaging e-mails to his former colleagues, including suggestions that they move to other companies. After unsuccessfully blocking all the e-mail from coming into its system, Intel went to court and asked for an injunction, arguing the messages were trespassing on its equipment. The court disagreed. “He no more invaded Intel’s property than does a protestor holding a sign or shouting through a bullhorn outside corporate headquarters,” wrote Justice Kathryn Mickle Werdegar. (Intel Corp. v. Hamidi, No. S103781, 6/30/03)