Freedom of Speech in the Private Sector Workplace. Or Not

1
Freedom of Speech in the Private Sector
Workplace.Or Not

• Laurice D. Royal
• Senior Counsel
• Employment Affairs and Accessibility Coordination
• The Johns Hopkins Health System Corporation
• Legal Department
• lroyal1_at_jhmi.edu

2
My Goal Today..

• We will discuss the legal implications of free
  speech in the private sector workplace.
• I will share with you what is legally protected
  speech in the workplace and why, and what is not.
• I will not share with you the law encompassing
  speech in the classroom, speech expressed by
  those employed by a governmental employer, or off
  duty speech.
• At the conclusion of this workshop, you should
  understand how various employment laws relate to
  expression in the private sector workplace.

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Why Should We Care About Speech in the Workplace?

• Many employers have chosen to adopt policies
  concerning employee communications for a number
  of reasons. Policies can be helpful in defining
  an employees actions in the following areas
• Authority to comment to news media on official
  matters
• Authority to communicate with or about customers,
  vendors, patients, etc.
• Use of work time
• Use of employers computer and other resources
• Disclosure of confidential or proprietary
  information
• Prohibition on content of communication that is
  disloyal, discriminatory, inflammatory,
  threatening, disruptive or disparaging of the
  employer, its employees, customers, services,
  etc.

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First Amendment

• The First Amendment to the United States
  Constitution states
• Congress shall make no law respecting an
  establishment of religion, or prohibiting the
  free exercise of thereof or abridging the
  freedom of speech, or the press or the right of
  the people peaceably to assemble, and to petition
  the Government for a redress of grievances.

5
Distinction

• Employees in the public sector who work for
  governmental entities have First Amendment
  rights in the workplace, subject to certain
  restrictions.
• But
• Not so with private sector employees.

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Are There Limits?

• Absence of a direct First Amendment right
• Equals
• Free rein to discipline, terminate or
  retaliate
• against employees for their speech in
  the workplace.
• No, because.
• There are other laws that may come into play
  that may protect employee speech in the private
  sector workplace, such as anti-discrimination
  anti-retaliation laws, whistleblower laws, and
  various other employment and labor laws

7
Some Expression Ok

• These laws provide a level of protection for
  certain types of expression in the workplace, and
  thus should be considered even if the First
  Amendment is not applicable.
• For example, punishing an employee because he
  speaks a language other than English at work with
  his or her co-workers is not technically a First
  Amendment violation in the private sector, but it
  could be a violation of certain
  anti-discrimination laws.

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Consider this.

• In March of 2005, the manager of a Dunkin Donuts
  in Yonkers, New York, stirred some local
  controversy when he posted a sign inviting
  customers to complain if they heard employees
  behind the counter speaking a language other than
  English. A day later, the manager removed the
  sign, responding to vociferous complaints that
  the sign amounted to discrimination.
• Do you think that it was discriminatory for him
  to put the sign up?
• Suppose I told you that the manager himself was
  Ecuadorian and spoke Spanish? Does that change
  your analysis?
• Suppose I told you that he did this because
  customers complained?
• Suppose I told you that the employees didnt
  complain about the sign?

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Violation?

• What laws may have been violated here?
• What about the rights of the customers?
• Do they have a right to go into a business and
  expect everyone in that facility that deals with
  the public to speak English?
• What do you think the
• outcome was of the case?

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Anti-Discrimination Laws
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Federal Law-Title VII

• Title VII is a federal law that bars employers
  from discriminating against any employee with
  respect to their compensation or other terms and
  conditions of their employment on the basis of
  that persons
• race,
• color,
• religion,
• sex or
• national origin
• Additional amendments to this law
• Disability (ADA)
• Pregnancy (PDA)
• Veteran Status (USSERRA)
• Age (ADEA)

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Maryland Law- Article 49B

• In addition to the protections found in federal
  law, Maryland also makes it unlawful to refuse to
  hire or discharge an employee due to
• Age (both under and over age 40)
• Marital status
• Genetic information, or refusal to submit to a
  genetic test
• Sexual orientation

13
Baltimore City Code- Article IV

• In addition to the protected categories listed
  under Federal and State law, Baltimore
  Citys anti-discrimination law also protects
  individuals on the basis of their
• -color,
• -ancestry,
• -physical or mental capability,
• -sexual orientation

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Hot Topic Sexual Harassment

• Sexual harassment, which is a form a sex
  discrimination, is defined as unwelcome sexual
  advances, requests for sexual favors, and other
  verbal, non-verbal or physical conduct of a
  sexual nature when
• submission to such conduct is made either
  explicitly or implicitly a term or condition of
  an individual's employment
• submission to or rejection of such conduct by an
  individual is used as the basis for employment
  decisions affecting an individual or
• such conduct has the effect of interfering with
  an individual's work performance or creating an
  intimidating, hostile, or offensive working
  environment.

15
Consider This

• Mary has issues with her co-worker John.  John
  has a Sports Illustrated swimsuit calendar
  hanging on his office wall Mary sees it whenever
  she walks by.
• John also sometimes complains in the lunchroom
  about "feminazis" who are ruining the nation. 
  "The problem with this country," he says, "is
  that women don't stay at home, where they
  belong."
• Mary thinks this constitutes sexual harassment
  and wants John to stop.

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Violation?

• Is one sexually suggestive calendar and several
  sexist political comments "severe or pervasive"? 
• Would a reasonable person find that the comments
  and calendar make the environment "hostile or
  abusive"? 
• Isnt John entitled to his opinion about women?
• In his own workspace, why cant he display the
  type of art he enjoys?

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Hot Topic Religious Expression

• Although workplaces across the county in general
  appear to have become more accepting of religious
  beliefs of co-workers, over the past five years
  complaints alleging religious discrimination have
  risen more than 30 percent.
• In response to this increase, on July 22, 2008,
  the Equal Employment Opportunity Commission
  (EEOC) issued a new section of its Compliance
  Manual on religious discrimination in the
  workplace.

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The Law and Religious Expression

• Title VII requires an employer, to reasonably
  
• accommodate an employee whose sincerely
• held religious belief, practice, or
  observance
• conflicts with a work requirement, unless
• doing so would pose an undue hardship.
• Religious harassment in violation of Title VII
• occurs when employees are
• required or coerced to abandon, alter, or
• adopt a religious practice as a condition of
  employment or
• subjected to unwelcome statements or conduct that
  is hostile or abusive, and there is a basis for
  holding the employer liable.

19
Consider This

• Richard Peterson, a devout Christian who believed
  that homosexual activities violate Bible
  commandments, had been employed by
  Hewlett-Packard in Idaho for nearly 21 years
  before his termination.
• When the company began to display diversity
  posters referring to gay employees, Peterson
  posted biblical quotations critical of a
  homosexual lifestyle in his cubicle. The signs
  were visible to passing coworkers.
• Peterson's supervisor removed the quotations
  because they might offend certain employees and
  because they violated the company's
  anti-harassment policy. Management asked Peterson
  to refrain from additional postings, but he
  refused.
• Peterson was given time off with pay to
  reconsider. When he returned, he reposted the
  quotations and refused to remove them.
• Ultimately, he was terminated for
  insubordination.

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Violation?

• Is posting Bible verses in the workplace, in
  ones own space offensive?
• What if Richard displayed a cross in his cubicle
  instead, would that have made a difference?
• What else could the employer have done to
  accommodate his beliefs?
• What do you think the court decided?
• What about Richards rights?

21
Limiting Religious Expression

• Note
• An employer can restrict religious expression,
• where it would reasonably cause customers or
  co-workers to perceive the materials to express
  the employer's own message,
• or where the item or message in question is
  harassing or otherwise disruptive.

22
National Labor Relations Act (NLRA)Employee
Rights

• Under the NLRA, non-supervisory private sector
  employees have the right to form, join, support
  or assist labor organizations, who may bargain
  collectively with the employer on the employees
  behalf seeking to modify wages or working
  conditions.
• Nonunionized employees also have the right to
  engage in other protected concerted activities to
  improve their wages and other working conditions.
  
• Employees further have the right to refrain from
  engaging in these activities or to seek removal
  of a union from the workplace.

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Employee Rights continued.

• An employer cannot take action against employees
  who complain about safety, unlawful
  discrimination, or who engage in other speech
  that is protected from retaliation.
• Employers generally may not prohibit employees
  from speaking about unions on their breaks, or in
  non-public areas.
• Whistleblowers, employees who complain to the
  government about employers illegal conduct, also
  are protected from retaliation.
• The law prohibits employers from taking action
  against an employee for lawful, off premises
  activity, at least with respect to matters
  addressed in the NLRA.
• The law also prohibits discrimination against
  employees based on their political activity.

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Employer Rights

• Employers can take action against employees who
  engage in disloyal behavior or disparage the
  employers customers or business activities are
  not protected by the NLRA.
• Employers can generally prohibit employees from
  engaging in speech during work time that is not
  work-related.
• Employers also can regulate use of their
  communication systems, such as their telephones
  and e-mail..
• Employers can take action against employees who
  insult a manager, engage in speech that would
  violate an anti-harassment policy, etc.
• Employers also may demand loyalty at the
  workplace. For example, an employee cannot avoid
  discipline in the name of free speech by being
  rude to customers, or by denigrating the
  employers business to customers while working.

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Hot Topic New NLRB Guidelines

• According to the new NLRB guidelines, employee
  political speech that touches on employment
  issues may be protected by Section 7 of the NLRA.
• In essence, if there is a direct nexus between
  employment-related concerns and the specific
  issues that are the subject of the political
  speech, then the speech is protected. 
• Of course, you can still counsel the employee to
  confine his activities to appropriate places and
  times, if it is interfering with work. 

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Consider this

• You have an employee who regularly stands around
  the water cooler to discuss his world views with
  his coworkers.  Some coworkers complain to you
  that they don't want to hear it, so you call the
  employee in to your office and tell him to keep
  his views and opinions to himself.  Is this
  lawful?
• Depends..
• If he expressed his views on why the U.S. should
  pull out of the U.N., or why industrial hemp
  should be legalized, his speech is probably not
  protected speech. 
• However, if his views are on the minimum wage, or
  the expansion of medical marijuana laws to
  require workplace accommodation, both topics may
  actually be protected speech under the new NLRBs
  guidelines. 

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Hot Topic Political Opinion and Expression in
the Workplace

• A 2001 study by the AFL-CIO concluded that 80 of
  employees believe that it would be illegal for
  their employer to fire them for engaging in
  political expression at work.
• This assumption is incorrect.
• Political affiliation is not a protected class
  under federal antidiscrimination and
  anti-harassment laws and there is no federal
  protection for engaging in political activities
  at work.

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Forms of Political Expression

• As this year's presidential election nears its
  close, some employers find themselves faced with
  the prospect of increased political expression in
  the workplace. Employees will express themselves
  in a number of ways, such as
• Wearing political buttons
• Sharing political cartoons in work areas
• Downloading political screen savers
• Circulating fliers or e-mail messages and other
  petitions soliciting colleagues to support
  candidates at rallies and other get-togethers, or
  to make contributions
• Having water cooler discussions regarding the
  candidates and the issues.

29
Consider this..

• A mechanic who was a member of the Sons of
  Confederate Veterans, refused to remove two
  confederate battle flag decals from his workplace
  toolbox.
• An African American co-worker complained that
  displaying the flag violated the company's
  anti-harassment policy.
• The mechanic was not asked to change his
  opinions, but to alter his expression, as evinced
  by employer's offer to purchase new toolbox for
  garage use and its suggestion that flag-adorned
  toolbox could be used at home.
• The employee was ultimately terminated for
  refusing to remove the flag.

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Violation?

• Did the mechanic have a right to express his
  political view (through the decal) in the
  workplace?
• Suppose the decal was a pro-choice decal, would
  that make a difference?
• Suppose no one complained, should the employer
  still advise the employee not to display the
  decal?
• What do you think the court decided?

31
Whistleblowing /Anti-Retaliation Laws

• There are many Federal and State laws that
  provide protections for employees who allege
  misconduct on the part of the employer or another
  employee.
• In the general, the misconduct may be a violation
  of a regulation, and/or a direct threat to health
  and safety, or corruption.

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Protections..

• Whistleblowers are generally protected from
  retaliation if an employer takes adverse action
  for reporting what was reasonably believed may
  be misconduct.
• However, most whistleblowers are required to
  report the wrongdoing to an individual in the
  organization with the power to do something about
  the misconduct in order to be protected under the
  law before reporting it to a regulatory agency.
• It should be noted that Maryland law also
  specifically protects certain healthcare workers
  who are whistleblowers from retaliation if they
  disclose to a supervisor and a board an activity,
  policy or practice that is in violation of a law,
  rule, or regulation.

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Consider this.

• Nurse Lark, was terminated after she complained
  to her immediate supervisor and facility vice
  presidents -- but not to an external medical
  board -- about what she believed was the illegal
  provision of narcotics to people who were not
  patients of the hospice and to patients who had
  not been prescribed the drugs.
• The employer denied Lark's allegations of medical
  wrongdoing and her claim that she was fired
  because of her complaints.
• The employer claimed that Lark was dismissed
  because her "conduct as a nurse treating hospice
  patients ... deviated from acceptable and safe
  standards of nursing practice."

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Violation?

• Was Larks report of alleged wrongdoing protected
  speech?
• Was it reasonable for her to believe that her
  employer was violating the law?
• What do you think the court decided in this case?

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What Have We Learned?

• In the private sector workplace, First Amendment
  rights do not apply.
• However, other laws may protect employee speech
  and expression in the workplace.
• There is a balancing act that takes place when
  addressing employee rights and the business needs
  of the organization.
• It is important for employers to understand what
  speech may be regulated, and what speech must be
  permitted.
• Employers should ensure that appropriate policies
  or guidelines are in place to set standards that
  are applicable to all employees, regardless of
  their affiliation (religious, political, union,
  etc.), protected category or status, concerning
  workplace speech and expression.
• When in doubt, consult with all of the resources
  available to you, which may include HR, Legal and
  others with expertise in addressing workplace
  speech issues.