Most Americans believe that their right to free speech is unfettered. And, by and large, it is. You can make truly hateful, hurtful statements; advocate radical and even bizarre theories; express how you really feel about almost anything and anyone. All without legal consequences.
The only downside is that employers are not required to continue your employment if they disagree with or disapprove of what you say. And they have the right to terminate your job if they want to do so.
This knowledge frequently comes as a shock, especially when the person affected has just been informed that his or her services are no longer required. Without wandering too deeply into the thickets of constitutional law, the basic theory is that speech is protected, but unless contractually protected, the right to employment is not. This will be particularly interesting in a Presidential election year in which much of the business establishment has lined up in support of one candidate over the other. The degree to which employees may feel that their right to say what they want, however valuable, is simply not worth losing a job in a lousy economy.
The broader question is whether companies suffer from such intolerance. Not so much for political speech, but because outspoken staff members often have good ideas about productivity, cost saving and sales opportunities. Be that as it may, the reality is that many, if not most, employees are retained 'at will,' which means the boss has the right to hire and fire without legal consequences. The market may ultimately dispose of those who are consistently immune to good advice or the loss of talented, if in-artfully vocal staff. But in the interim, free speech, like so many other 'free' assets, may actually have a price. JL
Michael Dolgow reports in Bloomberg BusinessWeek:
In America you can say pretty much whatever you want, wherever you want to say it. Unless, that is, you’re at work. Simply put, there is no First Amendment right to “free speech” in the workplace potentially perilous for many employees in a polarized political year with a tight presidential race.
Current news provides plenty of examples of just how much leeway managers have to limit their workers’ freedom of speech, or to encourage political activity among employees. On Aug. 2, an Arizona-based medical supplies manufacturer, Vante, dismissed CFO Adam Smith for berating a Tucson Chick-fil-A employee for working at what he considered a homophobic company. Chick-fil-A has made national headlines recently for its president’s controversial comments about same-sex marriage.
“I don’t know how you live with yourself and work here,” Smith says in a video of the exchange, which was posted on YouTube (GOOG). “This is a horrible corporation with horrible values. You deserve better.” Vante quickly fired Smith, and posted its regrets about the incident in a statement on the home page of its website.
Bosses and those who work under them are not equal when it comes to free-speech legal claims. Employers have the right to take action against any employee who engages in political speech that company leaders find offensive. With a few narrow exceptions the Constitution and the federal laws derived from it only protect a person’s right to expression from government interference, not from the restrictions a private employer may impose, lawyers say.
Employers are not similarly restricted in expressing their political views or encouraging support for a particular candidate or cause. Not only can employers remind employees of the upcoming election and encourage them to vote, but they can base continued employment on whether a worker agrees to contribute money or time to the boss’s favorite political candidate, so long as there’s no state law prohibiting it. (Eight states and the District of Columbia have laws protecting employees from such mandates.)
Consider the case of David Siegel, founder of Orlando (Fla.)-based Westgate Resorts, the nation’s biggest time-share developer and the man behind what is planned to be the largest house in America. In February, Siegel told Bloomberg Businessweek that his efforts were largely responsible for the 2000 election of President George W. Bush. “I’m not bragging, I’m just stating the fact: I personally got George W. Bush elected,” he said. “I had my managers do a survey on every employee. If they liked Bush, we made them register to vote. But not if they liked Gore.” Siegel also said his company’s call center made 80,000 calls on behalf of Bush’s campaign.
While federal statutes such as the 1964 Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, and the National Labor Relations Act limit companies’ rights to fire or hire workers and prevent them from joining unions, these restrictions are based only on race, religion, ethnicity, sex, age, and a few other protected categories. Political opinion isn’t protected by any of these statutes.
“The First Amendment applies only to employees of the government in certain situations, and all citizens when they’re confronted by the government,” says Mark Trapp, an employment lawyer with Epstein Baker Green in Chicago. “In other words, freedom to speak your mind doesn’t really exist in work spaces.”
It’s a limitation that retired Air Force Colonel Morris Davis knows well. The former prosecutor of the Guantanamo Bay military commissions, who was appointed by President George W. Bush, resigned over what he perceived as systematic mistreatment and abuse of prisoners by U.S. soldiers at the detention camp. After taking a job with the Library of Congress, he was fired in late 2009 for refusing to recant the contents of pieces published in the Wall Street Journal and the Washington Post criticizing the Obama administration’s failure to close the prison.
“I was shocked to see the limits of the First Amendment,” Morris says. “We like to think that our rights are carved in granite, but instead it turns out they’re carved in sand.” Morris now teaches law at Howard University; the American Civil Liberties Union has sued the Library of Congress seeking Morris’s reinstatement.
However, there are valid reasons an employer would restrict political speech, beyond assuring a productive work site or suppressing opinions contrary to management. Chief among them: a fear of lawsuits alleging that an employer permitted a hostile work environment, and the risk of having to pay damages.
John Whitehead, president of the Rutherford Institute, a conservative legal organization, says employers are too quick to fire people over any statement with which managers disagree. “Americans now are not generally advocates of free speech, which really is not good,” Whitehead says. “Someone says anything that an employer or government official doesn’t like, and they’re gone.”
The bottom line is pretty simple: Be satisfied with talk at work that doesn’t offend colleagues or anger the boss. “The Constitution operates as a restriction on government, not private employers,” Trapp says. “An employee would do well to keep this in mind before shooting off her mouth at the workplace.”
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