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Many people believe that we have freedom of speech guaranteed in the First Amendment of our Constitution so we are free to express ourselves at all times. We have become accustomed to voicing our opinions freely whether it is in person or on social media.
The law on free speech is very complex so it is always prudent to consult with an attorney when confronted with these issues in the workplace. The First Amendment states that “Congress shall make no law restricting freedom of speech or of the press or religion.” This prevents the government from infringing on our free speech rights and does not include the non-government, private sector.
How can employers manage the workplace to ensure a positive corporate culture of respect and dignity that is free from discrimination, intimidation and bias and that employees support the business interests?
Employers do have the right to manage the workplace and to take action when the business is negatively affected such as when employees cause lost customers, lowered employee morale or tarnished brand or public image. This is why it is important that companies establish clear written codes of conduct and written policies for social media, discrimination, harassment and more to address employment related situations. When clients react to the political or social viewpoint expressed by employees by taking away their business, the employer’s recourse is to ascertain whether this viewpoint is contrary to business interests and values stated in the written policies and then act accordingly.
As you can imagine, when our personal opinions are contrary to the values or business interests at our place of employment, tensions can build. Examples could include a person who publicly advocates for electric cars while employed as a sales person at a company that produces gas cars. This person has every right to publicly advocate for electric cars but does not have a right to employment at a company that produces gas cars.
When arguments get heated and result in harassment or profanity, the written policies prohibiting that behavior can be relied upon rather than addressing the content of the speech. Written policies addressing business interests are also particularly important when the top line shrinks as clients respond negatively to a political or social viewpoint expressed openly by one or more employees.
Second, an employer does not have the freedom to just terminate an employee for speech in the workplace without first taking into account various other laws including anti-discrimination laws, labor laws, whistleblower laws and any federal, state or local laws that prohibit discrimination including political beliefs and political activity outside of the workplace. In fact, an employer may have a duty to act if the employee’s speech violates any anti-harassment or anti-discrimination laws.
Third, it is very important that the employer handles each situation the same. When employers begin to make exceptions, there is always a risk that it is viewed as treating employees differently and may give rise to a discrimination claim.
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