The topic of free speech rights at work came to the fore recently when Colin Kaepernick, a quarterback for the San Francisco 49ers National Football League Franchise, began taking a knee for the pregame National Anthem performance in a preseason game last August.
In the wake of Kaepernick’s actions, a number of other NFL players followed suit, and the protest spread to members of marching bands, high school players, and in at least one case, a singer sang the final lines of the Star Spangled Banner on one knee at a Sacramento Kings basketball game.
He also got a lot of employers and employees alike wondering to what extent the First Amendment protects employees from adverse consequences from their employer if they make a protest, or engage in political speech, social criticism or any other form of protest or expression on the job.
The short answer: In the private sector, it doesn’t.
Private Sector Employees Have Little Protection
The First Amendment protects us all as individuals from negative action or prosecution by government officials on the basis of speech restrictions. However, this particular amendment does not protect employees from negative actions, up to and including termination of employment, because of their exercise of free speech.
As Oliver Wendell Holmes Jr. put it, an employee may have a constitutional right to talk politics, but he has no constitutional right to be employed.
An employer is free to set policies prohibiting most forms of political or artistic or other potentially controversial expression by employers in the workplace or while on the clock.
There are, however, some notable exceptions, though, which have got some employers in hot water.
The most important exemption involves overly broad protections on speech. Federal law and many state laws prohibit employers from restricting employee free speech for the purpose of forming a labor union, for example. So a careless employer could potentially blunder into a violation of the National Labor Relations Act of 1935. Section 7 of the NLRA protects employees’ rights to discuss working conditions, wages and hours and organizing a union and/or entering into collective bargaining.
Under the NLRA, employers cannot issue blanket restrictions prohibiting all speech that is critical of the company. Employers’ authority to extend speech restrictions to break rooms and smoke areas, where employees are frequently off duty is also somewhat attenuated under federal law.
Some states – California, Colorado, Montana, New York and North Dakota, also expressly prohibit employers from punishing or discharging employees for legal off-duty activities not in conflict with their employment. Another nine states protect employees from being fired for off duty political expression, more narrowly construed. So before you discipline or fire an employee for an embarrassing Tweet, check the laws in place in your jurisdiction.
This is a rapidly evolving area of employment law, as jurisprudence works to catch up with the reality of social media. Meanwhile, however, employers must take steps to protect themselves and their company from liability arising from efforts to keep employees focused on their duties and on serving the customer.
That’s why it’s important to have some protection in place, in the form of employment practices liability insurance. This form of insurance covers employers against claims by workers and former workers that the company has violated their legal rights.
The number of lawsuits filed over employment rights disputes has been rising, and the average cost of simply mounting a defense can cost tens of thousands of dollars.
Employment practices liability insurance (ELPI) can help protect you against clams arising not just from improper restriction of employee free speech, but also against such claims as unlawful discrimination, sexual harassment, wrongful discipline or termination, breach of contract, failure to employ or promote, and mismanagement of employment benefit plans and much more.
For information on how employment practices liability insurance may help you and your business, contact your business insurance professional.