Image by Markus Winkler from Pixabay
By Michelle van Schouwen
With another tense U.S. election season coming up; controversial wars between Israel and Hamas as well as Ukraine and Russia; and ongoing unrest about employee pay, benefits, and rights; private employers are faced with a quandary on their own rights and responsibilities regarding employee free speech. It is critical that business owners educate themselves on both the NLRA (National Labor Rights Act) and state laws regarding speech in and beyond the workplace. Private employers should also learn about specific legal cases and how they were resolved. (Please note that the content of this article does not constitute legal advice. Consult with a qualified attorney as needed.)
Most small business owners have several concerns related to employee free speech and expression. These may include the need to stay out of legal trouble, the desire for workplace harmony and efficiency, and the wish not to have employees organizing against or publicly “dissing” the company.
The NLRA curbs the employer’s rights to stop employees – unionized or not – from organizing at or outside work; advocating for better compensation or conditions; campaigning for candidates whom they believe will better their employment situations; and even posting complaints about the company’s compensation or working conditions on social media. There are exceptions, including speech that includes harassment, discrimination, or threats. Profanity, sharing confidential company information, rude comments, and especially controversial political views may also be exempt from protection. These standards may seem murky, and indeed, many companies have been to court, often as defendants, because of questions of NLRA scope.
In addition to the NLRA, states have implemented laws that may either protect or limit employee speech in private companies. So, even though the First Amendment doesn’t protect much speech in the private workplace, your state may.
With all these caveats in hand, a few general guidelines may help.
-As a private employer, you must not coerce employees to support, oppose, or discuss an issue unrelated to actual day-to-day business, nor a party or candidate; nor may you attempt to prohibit employees from participating in political activities (especially on their own time). You must not link employees’ choices on these matters to their employment.
-Your employee manual should include guidelines for workplace behavior that are appropriate no matter what topic is being addressed. These can include prohibition of discriminatory, threatening, abusive, derogatory or antisocial speech or activity. Felony convictions, whether for political involvement or other issues, should also be included.
-The manual can also specify a dress code, which (in most states) can prohibit political attire or buttons. Consistency is imperative: You can’t prohibit a MAGA hat while allowing a “My Body, My Choice” T-shirt – or vice versa.
-Employers must also be careful not to limit political speech with which they do not agree while allowing that which aligns with their own views.
-Employees should be barred from disturbing another employee by forcing them to listen to or become involved in political or sensitive matters not related to work.
-Employees must be aware that, in general, work hours are to be spent on doing the job. (However, note that, in general, organizing or advocating for improved compensation or conditions must be considered part of employees’ work.)
-While private employers may, in some states, have the right to monitor and limit employees’ own social media use, this is generally regarded as an overreach, even when such speech directly affects the company. This is a matter that is best addressed with an attorney’s guidance.
-Be reasonable. Once you have set guidelines that are legally defensible, trust your employees to be thoughtful. If trouble does crop up, first protect your company by not taking action that could be deemed illegal, while guarding the physical and emotional safety and tone of the workplace.
As a longtime private employer, I empathize with the challenge of walking that fine line between free speech and a functional workplace. However, your skill in doing so will build trust and confidence among your staff and thus benefit your company in an always messy world.
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Michelle van Schouwen is principal of Q5 Analytics, providing advocacy and communications for climate change mitigation and adaptation. For 32 years, Michelle was president of van Schouwen Associates, LLC (vSA), a B2B marketing company. In 2017, she sold vSA. Michelle is available for speaking engagements on topics including her work on climate crisis mitigation and Florida coastal water issues. She speaks to business and student groups about marketing launches and entrepreneurship and works with start-ups to support their development.
