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Can I Fire an Employee for Wearing a Campaign Button? (And Other Questions about Free Speech in the Workplace)

Nov. 15, 2018
A employer's guide to the nuances of the First Amendment.

On July 6, the fast-food company In-N-Out Burger received a rebuke from the Fifth Circuit Court of Appeals for its policies requiring restaurant employees to adhere to strict uniforms. The company’s policy prohibited the wearing of lapel pins that advocated a $15 minimum wage in one of its Austin, Texas restaurants.

In-N-Out had appealed a ruling by the National Labor Relations Board (NLRB). The ruling concluded that the company’s policy violated Section 7 of the National Labor Relations Act (NLRA), which permits employees to engage in collective bargaining activity.

According to the NLRB, collective bargaining activity includes the wearing of buttons advocating for higher wages. A petition to the United States Supreme Court has been made, and both sides, and employers across the country, await word on whether the Court will hear the case.

Recent activity, most notably in the National Football League—where players and cheerleaders have protested during the national anthem—has raised questions about what free speech, if any, is protected in the workplace. Can NFL players and staff be fired for engaging in political expression before or during a football game by their teams? Can employees be terminated for wearing buttons advocating or protesting a candidate or political position? Are employees permitted to speak their minds on any topic in the workplace, so long as that speech is not offensive to others or disruptive to the workplace?

Free Speech Has Limits

There seems to be a fundamental misunderstanding about what the Bill of Rights guarantees. While citizens enjoy a right of free speech under the First Amendment, that right only prohibits the federal government—and people acting on behalf of a government body—from suppressing free speech.

Each state has also enacted laws that mirror those the rights guaranteed under federal law. However, citizens do not have an unfettered right to free speech at work or in privately owned establishments (such as malls, grocery stores and restaurants). While those employed by the federal government, or by state, city or municipal governments, have heightened free speech protections (because the Bill of Rights and state laws apply to those government bodies, even as employers), employees working for privately held companies are treated differently. So how are they treated differently?

Employees of privately held companies, including private companies that are government contractors, have very few protections under federal law. First, the NLRA protects an employee’s right to engage in speech in the workplace with co-workers in order to “engage in concerted activity” directed at collective bargaining. More simply put, employees are permitted to speak among themselves about wages, working conditions and related topics in the office and cannot be subject to an adverse employment action for engaging in that activity.

This is the crux of the NLRB’s argument against In-N-Out’s actions against its employees—the buttons represent concerted activity directed toward collective bargaining for higher wages. Employers may not demote, terminate, fail to promote or engage in other action that adversely affects an employee for engaging in such protected speech.

Second, myriad federal laws protect employees who engage in “whistleblowing” activity. Under federal law, an employee who learns of unethical or illegal activity within the company and either reports the conduct or refuses to participate in it can be deemed a whistleblower, and a company that retaliates in response to the employee’s exercise of expression can find itself in court. There are currently at least 22 separate federal laws under which individual employees could be considered “whistleblowers.”

Beyond those limited protections, federal law is largely silent on employee speech in the workplace.

Employee Speech Under State Law and in Social Media

Depending on the physical location of the employees, state law may offer additional protections for employee speech above and beyond those limited protections afforded by federal law. Companies must be aware of the nuances in state and municipal law. For example, in California, companies may not subject employees to an adverse employment action based on an employee’s political affiliation or political activity.

Even though California has a presumption of “at-will” employment, terminating someone for having a political poster in their office advocating for a candidate could get a company in trouble. Under most state laws across the United States, employees are also protected from an adverse employment action for reporting harassment, discrimination or bullying in the workplace. Companies need to familiarize themselves with the laws of states they do business in to comply with those laws in the workplace.

Free speech also extends to the use of social media. While companies can curb the use of social media while at work and on company-owned hardware, employees are, under most state laws, free to engage in the use of social media outside the workplace. So long as the employee’s activities outside of work do not have a direct impact on the company’s reputation or financial well-being, and so long as the employee’s conduct outside of work does not otherwise violate company policies, employees may use social media outside the workplace.

Next Steps

Before taking action against an employee who has engaged in conduct that otherwise appears actionable, it’s wise to seek counsel. In addition, following this series of steps will help companies avoid potential liability.

1. Ask, “What is the context of the speech?” Does the speech relate to wages or workplace conditions? If it does, an employee’s speech might be protected under the NLRA.

2. Determine whether the employee’s speech might categorize that individual as a “whistleblower” under federal law. Is the employee complaining of or refusing to engage in what he or she contends is illegal or unethical conduct? Is the employee engaging in expression to report or contest improper behavior, such as perceived harassment, discrimination or bullying?

3. Familiarize yourself with state laws relating to political speech and political affiliation. Is the employee’s speech an expression of political affiliation or political activity? Depending on the state, the company may not be able to take adverse action against the employee if the speech, if it doesn’t otherwise violate workplace policies, is political.

4. Revisit your social media policies to ensure compliance with federal and state laws relating to conduct outside the workplace and what constitutes protected speech. Social media policies must be robust enough to provide clear guidelines on what appropriate use is encouraged, while ensuring that the policy, and/or other related policies, do not interfere with an employee’s ability to post on social media.

While federal law is for the most part silent on social media policies, each state has specific statutes that govern how employers may enforce policies relating to the use of social media in the workplace. Companies should be cognizant of the laws of each state where they have employees to ensure that their policies comply with all applicable laws.

Grant Alexander is a partner in Alston & Bird’s Litigation & Trial Practice Group. He is based in Los Angeles and focuses his practice on employment, class action litigation, and misappropriation of trade secret matters.

About the Author

Grant Alexander | Partner

Grant Alexander is a partner in Alston & Bird’s Litigation & Trial Practice Group. He is based in Los Angeles and focuses his practice on employment, class action litigation, and misappropriation of trade secret matters.

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