Workers are finally awakening to the reality that free speech protections do not exist in the private workplace. Creative practitioners, too—and perhaps most importantly—are struggling with the impact of their works, both virtual and real. Legal experts and human resource professionals underscore that the First Amendment does not provide protection for employees’ speech in private employment settings. This new reality invites important First Amendment questions regarding the intersection of personal speech and professional behavior.
Andrew Kragie is an employment and labor attorney at Maynard Nexsen. He argues that the First Amendment doesn’t protect employees’ speech from private workplaces. Workers can be fired, criminally charged, or otherwise severely punished for speaking their minds off the clock. This may be the greatest danger in highly politicized settings.
Amy Dufrane, CEO of the Human Resource Certification Institute, points out a common misconception among employees regarding social media usage. She notes, “People don’t realize when they’re on social media, it is the town square.” This callout reflects the very real ways that digital life can complicate the divide between work and home.
Steven T. Collis is a professor of law at the University of Texas at Austin. He is faculty director of the Bech-Loughlin First Amendment Center and his experience provides lots of useful context to this major discussion. He continues to explain that the First Amendment has unique importance when the government is acting as an employer. Private companies are not held to the same standards.
When they do so as private citizens, they are often afforded significant protections. This protection is particularly warranted if their statements focus on subjects of social importance to the public. Unbeknownst to most litigators, the Supreme Court last week laid down an important protection to employees. If they express their opinions in a personal capacity, they can be protected from punishment by their employer.
The picture grows hazy when political speech takes place in the workplace or at work-sponsored events. Vanessa Matsis-McCready, associate general counsel and vice president of HR Services for Engage PEO, cautions that seemingly harmless conversations about political ideologies can lead to dire outcomes. “If an employee is at a company event on a weekend and talks about their political viewpoints in a way that makes others feel unsafe or the target of discrimination or harassment, then they could face consequences at work,” she explains.
In NY and other states like it, the law protects employees from being terminated for political activities they conduct on their own time. These protections only exist so long as workers don’t connect their action to their employer. This protection stands in contrast to the general “at-will” employment law prevalent across most of the United States, which allows employers considerable latitude in hiring and firing decisions.
Even with these state-specific protections in place, experts agree that there is a significant patchwork of employee speech rights at best. Almost every state’s statute forbids retaliation against employees for their political beliefs or lawful conduct outside of work. These laws almost always have exceptions and do not provide all-encompassing protection from retaliatory employer conduct.
Dufrane sheds light on the dangers human resource professionals face in wading into such tricky conversations. She emphasizes the need for clarity within organizations regarding policies on political discourse: “HR has got to really drill down and make sure that they’re super clear on their policies and practices and communicating to their employees on what are their responsibilities as an employee of the organization.”
Matsis-McCready would echo that sentiment. She points out the challenge that most HR professionals aren’t trained to have these politically-charged conversations in the workplace. Tansimba cautions that the more recent, rapid propagation of misinformation through the channels of social media can worsen these problems. “Some of the individuals that had posted and their posts went viral, all of a sudden the phone lines of their employers were just nonstop calls complaining,” she states.
The factors shaping workplace communication have changed dramatically due to the emergence of digital channels such as Slack and Microsoft Teams. Matsis-McCready’s hunch is that these tools create a more relaxed space. In this virtual space, employees are emboldened to say things they wouldn’t dare say outside the safety of their social media—posting incendiary messages and comments.
This informal style creates gaps that fuel miscommunication and conflict. “Because of the violent nature of what some political discussion is now about, I think there is a real concern from employers that they want to keep the workplace safe,” Matsis-McCready says. “They’re being extra vigilant about anything that could be viewed as a threat, which is their duty.”
