Is There a Right to Free Speech by Employees in the Private Sector?

By Robert G. Chadwick, Jr., Managing Member, Seltzer Chadwick Soefje & Ladik, PLLC.

On Friday, August 26, 2016, San Francisco 49er quarterback Colin Kaepernick made headlines by remaining seated during the national anthem before a pre-season game with the Green Bay Packers.  He later explained his decision to sit to the national media:

“I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color. To me, this is bigger than football and would be selfish on my part to look the other way. There are bodies in the street and people getting paid leave and getting away with murder.”

Colin Kaepernick has not (yet) been disciplined by the National Football League or the San Francisco 49ers for his demonstration or words on August 26th.  Others who have taken controversial political stands have not been so fortunate.  In 2014, Brendan Eich was pressured to resign as CEO of Mozilla after donating money for California’s Proposition 8, which sought to ban same-sex couples from marrying.

Although Colin Kaepernick has thus far escaped the fate of Mr. Eich, his actions and words may still be prompting questions by private employers as to their own employees. For instance, what if an employee expresses controversial political views in support of raising the minimum wage during working hours? What if an employee, as support for Colin Kaepernick’s position, refuses to stand for the national anthem during a company sponsored outing at a baseball game?  What if an employee’s public support, away from work, for  Donald Trump or Hillary Clinton brings unwanted attention to a company? Under such circumstances, is discipline or termination an option legally available to the private employer?

As with most questions implicating labor and employment laws, the answer depends upon the surrounding circumstances, and the employer’s location.

Does the First Amendment to the U.S Constitution Protect the Free Speech of Employees of Private Employers?

No. The First Amendment prevents only governments, not private citizens, businesses or organizations from interfering with a person’s freedom of speech.  Thus, while a government employee may enjoy the protection of the First Amendment, a private employee does not have such protection.

Do Federal Employment Laws Protect the Free Speech of Employees of Private Employers?

There is no federal law which expressly bars discrimination against an employee of a private employer based upon free speech, political activities or membership in a political organization. Still, some speech by private employees may be protected based upon the content and circumstances of the speech.  Under Executive Order No. 11246, federal contractors may not retaliate against employees who discuss their compensation.  Employee complaints at or away from work regarding pay or working conditions have routinely been found by the National Labor Relations Board (“NLRB”) to be “concerted activity” protected by the National Labor Relations Act (“NLRA”).  For certain employees, therefore, speech supporting the political cause of minimum wage increases may be shielded from retaliation by their employers.

Federal labor and employment laws also make it unlawful for an employer to retaliate against an employee who (1) opposes unlawful employment practices of the employer under such laws, or (2) becomes a whistleblower against the employer to the government alleging violations of such laws.  Under new regulations promulgated by the Occupational Safety & Health Administration, which are effective on November 1, 2016, employers may not retaliate against employees who report workplace accidents and injuries.

Even as to speech by an employee which may not be impliedly protected by federal labor and employment laws, taking an adverse employment action against the employee may not be a wise risk management decision. For instance, taking an adverse action against an employee for demonstrations or speech supporting Collin Kaepernick or “Black Lives Matter” may be cited by the employee as evidence of racial bias by the employer, in contravention of Title VII of the Civil Rights Act of 1964 and the Civil Rights Act of 1866.

Do State Constitutions Protect the Free Speech of Employees of Private Employers?

The constitutions of some states contain a right to free speech which is broader than that afforded by the First Amendment to the U.S. Constitution. Citing the California Constitution, the California Supreme Court in 2007 in Fashion Valley Mall v. NLRB upheld the right of union workers to distribute leaflets on private property open to the public.  At the very least, this decision raises the question of whether the California Constitution extends limited free speech rights to employees of private employers.

Do State Employment Laws Protect the Free Speech of Employees of Private Employers?

Many states supplement federal labor and employment laws with additional protections to private employees for concerted activities, discussions about compensation, opposition to unlawful employment practices and whistleblowing.

Only a few states have laws which purport to provide free speech protection not available under federal law. California, New York and Washington, D.C. prohibit discrimination by private employers against applicants or employees based upon their political activities or membership in a political organization.  These laws do not purport to authorize employees to engage in political speeches or demonstrations at work.  Rather, the laws seemingly outlaw retaliation against employees for political activities outside of work.

California, Colorado and North Dakota also bar discrimination based upon lawful conduct by employees outside of work.  Lawful support away from work for a controversial political cause, such as the Presidential campaigns of Hillary Clinton or Donald Trump, thus would seemingly be an impermissible basis for an adverse employment action in these states.

Are there Limitations to the Free Speech Rights Afforded to Employees of Private Employers?

Yes. The freedom afforded by the NLRA to speech stemming from “concerted activity” is not unlimited.  On August 18, 2016, the NLRB found that Chipotle had not interfered with an employee’s “concerted activity” when it demanded that he delete tweets criticizing the company for charging extra for guacamole and using “cheap labor.” In 2014 , the Board also found that employees of Richmond Dist. Neighborhood Center had forfeited any legal protection under the NLRA when they made comments that they intended to be uncooperative or insubordinate to their employer. Nevertheless, in 2012 the Board found that Fresenius Manufacturing USA had violated the NLRA in terminating a union supporter who had used sexually inappropriate remarks in support of a union campaign.

The protections afforded by federal and state employment laws to employee opposition and whistleblowing are also subject to a requirement of good faith. Any legal shield for opposition to an employer’s unlawful employment practices can also be lost if the employee uses unlawful conduct to express such opposition.

Most states also have statutory or common laws prohibiting (1) the unauthorized disclosure of an employer’s trade secrets or other confidential data to others, (2) conduct which is calculated to, and does, directly harm the employer, (3) defamatory statements,  (4) statements which invade the privacy of others, or (5)threats of violence. Such speech would thus not be lawful conduct at or away from work.

Takeaways For Private Employers

So, is there a right to free speech by employees in the private sector?  Certainly, where the speech relates to rights afforded an employee by federal and state labor and employment laws, the answer is yes.  This freedom extends to speech both at and away from work. This freedom is not without limits and does not provide an employee an unfettered license to engage in behavior destructive to the employer.

Where the speech relates to lawful political activities and other conduct away from work, the answer in a few states is also yes.  Again, this freedom is not without limits and does not permit an employee to engage in unlawful conduct, especially where the employer is the intended victim.

Even as to speech which does not fall within the express protections of an federal or state employment law, moreover, treating speech as protected may, under certain circumstances, be a prudent risk management decision which avoids a potentially costly discrimination suit. In all other circumstances, the right of an employer to maintain an environment conducive to productive and profitable work seemingly remains paramount; for now, the employer is free to discipline or terminate an employee who engages in unproductive or unprofitable speech or demonstrations.

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EEOC Suits Target Religious Discrimination!

By Robert G. Chadwick, Jr., Managing Member, Seltzer Chadwick Soefje & Ladik, PLLC.

On August 17, 2016, the Equal Employment Opportunity Commission (“EEOC”) filed suit against KASCO, LLC in the U.S. District Court for the Eastern District of Missouri alleging the company had unlawfully terminated an employee, in violation of Title VII of the Civil Rights Act of 1964, because (1) of her religion – Islam, (2) her national origin – Afghanistan, and (3) she complained about previous discriminatory treatment. The suit’s allegations include derogatory statements by supervisors about the employee fasting during Ramadan and wearing a hijab.

The suit against KASCO, LLC was the fifth filed by the EEOC in the past four months asserting religious discrimination in violation of Title VII.

July 12, 2016:  The EEOC sued Hospitality Staff in the U.S. District Court for the Middle District of Florida alleging the Orlando staffing company had violated Title VII by terminating a prep cook who refused to cut his long hair.  The suit claims Hospitality Staff made no effort to accommodate the employee, who practices Rastafarianism and who grew his hair into dreadlocks as part of his religious beliefs.

June 7, 2016:  The EEOC filed suit against Greenville Ready Mix Concrete, Inc., in the U.S. District Court for the Eastern District of North Carolina, complaining that a truck driver was unlawfully terminated for refusing to work on a Saturday.  The suit avers Greenville Ready Mix made no attempt to reasonably accommodate the truck driver’s religious beliefs as a Seventh Day Adventist, which prohibit him from working from sunset on Friday to sunset on Saturday.

June 2, 2016:  The EEOC sued Baystate Medical Center in the U.S. District Court for the District of Massachusetts claiming the company had discriminated against an employee, based upon her religious beliefs, by (1) refusing to accommodate her religious objection to mandated flu vaccinations, and (2) firing her because of this religious belief and her complaints of discrimination.

April 28, 2016: The EEOC filed suit against Mission Hospital, in the U.S. District Court for the Western District of North Carolina, alleging that employees had been fired for not timely requesting a religious exemption from mandated flu vaccinations.  The suit contends a September deadline for requesting a religious accommodation to a December deadline for vaccinations was not a reasonable accommodation.

In Fiscal Year 2015, only 3.9% of the charges filed with the EEOC alleged religious discrimination.  Five suits in four months, therefore, shows that religious discrimination is an enforcement priority for the agency. Furthermore, even though the EEOC released a technical guidance tool in March 2016 entitled “What You Should Know About Religious and National Origin Discrimination Against Those Who Are, or Are Perceived to be, Muslim or Middle Eastern”, it is clear that the agency enforcement priority is not limited to religious discrimination against Muslims.

The suits recently filed by the EEOC also raise three interesting questions about the breadth of protections provided by Title VII to religious observances, practices and beliefs.

Does Title VII Protect Non-Traditional Religions, Such as Rastafarianism?

Yes. For purposes of Title VII, religion includes not only traditional, organized religions, such as Christianity, Judaism, Islam, Hinduism, Buddhism or Sikhism, but also “sincerely held” non-traditional religious beliefs. In 2012, an Ohio federal court refused to dismiss a Title VII lawsuit claiming veganism as a religion. In 2002, a Wisconsin federal court found that an employee was protected by Title VII as a “follower of the World Church of the Creator, an organization that preaches … white supremacy.”  “That is not a religion”, therefore, may not be the wisest approach by an employer when presented with a non-traditional belief.  Rather, the prudent approach is for the employer to seek legal counsel to manage the risk of a Title VII claim.

Does Title VII Prohibit Derogatory Statements Regarding an Employee’s Religious Observances, Such as Ramadan and Hijabs?

Probably.  Religious harassment is prohibited by Title VII and statements or conduct belittling an employee’s religious observances, such as holidays and appearance, can be the basis for a harassment claim. For this reason, it is important for an employer to (1) have a written policy prohibiting such harassment, (2) communicate in writing the procedures by which an employee can complain of religious harassment, and (3) provide religious harassment training to its employees, and not just sexual harassment training.

Does Title VII Require that Work Requirements be Relaxed to Accommodate an Employee’s Religion?

Possibly. According to the EEOC, “Title VII requires an employer to reasonably accommodate an employee who’s sincerely held religious belief, practice or observance conflicts with a work requirement, unless to do so would pose an undue hardship.”  What constitutes “reasonable accommodation” or “undue hardship” depends upon the situation.  In this regard, the analysis is different from that for disabled individuals under the Americans with Disabilities Act. Indeed, the Supreme Court, in TWA v. Hardison, 432 U.S. 63 (1977), held that an employer need not incur more than minimal cost or disruption of business in order to accommodate an employee’s religious observances.

Where most employers get into trouble, as exemplified by the recent EEOC suits, is holding fast to a work requirement without any analysis of the possibility of a reasonable accommodation to resolve a known religious’ conflict for an employee. Such an analysis may reveal a simple and workable solution.  Such an analysis may also reveal that there is no reasonable solution to resolve the conflict.  In either event, the analysis itself, memorialized in writing, may be the employer’s best defense to a Title VII suit alleging religious discrimination.

Silent But Deadly: Inappropriate E-Mails in the Workplace

By Robert G. Chadwick, Jr., Managing Member, Seltzer Chadwick Soefje & Ladik, PLLC.

Even though e-mail has been a common form of business communication for more than two decades, ill-advised e-mails continue to be commonplace.  Recent headlines regarding leaked e-mails from the Democratic National Committee and the Clinton Presidential Campaign have again reminded us of both the power of such e-mails and the ease with which they can be distributed and intercepted.

The significant legal risk presented by inappropriate e-mails in the workplace was confirmed in a 2009 survey by the American Management Association. The survey found that (1) 9% of all companies have faced a lawsuit triggered by an employee e-mail, and (2) 24% of employers have had an employee e-mail subpoenaed by courts or regulators. The survey recognized that an employer can be exposed to significant liability for an ill-advised e-mail. This risk of liability extends both to employees and third parties.

Liability for Harassment or Discrimination Toward Employees

For instance, the content of an inappropriate e-mail can, without more, be the basis for a legal claim under employment discrimination laws which prohibit harassment based upon a protected characteristic, status or activity.

EXAMPLE: In 1995, Chevron agreed to pay four women $2.2 million to settle a harassment suit based upon the distribution of sexually offensive e-mails, including one entitled “25 Reasons Why Beer is Better than Women.”

Evidence of Unlawful Conduct Under Employment Laws

Inappropriate e-mails can also be relied upon as probative evidence in suits alleging violations of applicable labor and employment laws.

EXAMPLE: In a suit by a female employee against Microsoft alleging sex discrimination in a supervisor’s promotion decision, a New York court in 1993 denied summary judgment based upon evidence which included e-mails in which the supervisor (1) referred to himself as the “president of the amateur gynecology club”, (2) referred to a woman in the office as the “spandex queen”; and (3) forwarded a parody of a play entitled “A Girl’s Guide to Condoms” to a male co-worker, who later forwarded the e-mail to the plaintiff.

EXAMPLE: In a reverse discrimination suit brought against Bax Global by a Caucasian employee who alleged that he was terminated because he was not Hispanic, e-mail evidence included (1) a statement that the employee’s removal would inspire confidence in the company’s Latin American sector, and (2) concerns about the appearance of naming a Hispanic replacement only a day after the Caucasian employee’s scheduled termination. A Florida jury awarded the plaintiff $500,000 in compensatory damages and $1 million in punitive damages.

Defamation and Invasion of Privacy as to Current or Former Employees

As with any means for the transmission of substantive information, an e-mail can be the basis for a costly defamation and invasion of privacy claim by a current or former employee.

EXAMPLE: A former employee sued New York Life for defamation based upon an e-mail forwarded to 16 employees stating that the employee had been fired for using “her corporate American Express card in a way which the company was defrauded.” In 1999, a New York jury awarded the former employee $250,000 in compensatory damages and $1 million in punitive damages.

Liability for Illegal Conduct as to Third Parties

E-mails which violate criminal or civil laws designed to protect third parties can also be the basis for vicarious or independent liability of the employer for the unlawful conduct of the employee.

EXAMPLE: In 2005, a New Jersey Court held an employer could be held liable to a non-employee victim based on the conduct of an employee who used his work computer to view and transmit, via e-mail, child pornography involving the victim’s daughter.

Recommendations for Employers

To avoid the legal pitfalls associated with inappropriate e-mails, employers who provide e-mail access to their employees should implement policies and procedures which address the following:

  • The reporting and reduction of unwanted spam.
  • Prohibited workplace communications, including e-mails which (1) use fictitious identities or the identities of other persons without their knowledge or consent, (2) reveal confidential information or trade secrets, (3) constitute threats, harassment, bullying, false statements, gossip or unlawful activity, (4) invade the privacy of other persons, (5) expose the employer to civil or criminal liability, or (6) jeopardize the safety or physical, mental or emotional health of another person.
  • The education of supervisors and employees regarding the potentially explosive nature of e-mails.
  • The enforcement of workplace rules through lawful monitoring of information transmitted using the employer’s e-mail addresses and accounts.
  • Notice and consent measures which eliminate any expectation of privacy from employer monitoring as to information stored in, or accessed through, the employer’s computers, including e-mails.