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.