The First Amendment to the U.S. Constitution guarantees that the government will not interfere with the free exercise of religion or limit free speech. But we know that there are limits. The question for private employers is how these constitutional protections square with business policy. When and to what extent can an individual’s First Amendment rights be curtailed within the workplace? It can be a slippery slope.
What the Supreme Court has to say
In June, the U.S. Supreme Court said a high school football coach had the right under the Free Exercise and Free Speech Clauses of the U.S. Constitution to private prayer on the football field. The Court did not agree with the public school district that allowing this private prayer, which was viewed in public, amounted to endorsing religion, which would violate the Establishment Clause of the U.S. Constitution. According to the Court, “The Free Exercise and Free Speech Clauses of the First Amendment protect an individual engaging in a personal religious observance from government reprisal; the Constitution neither mandates nor permits the government to suppress such religious expression.” Because the school district was government funded, it was subject to this constitutional rule.
Private employers and free speech
Employees in companies, whether private or publicly trade (referred to throughout this blog as “private employers”), are not subject to the federal constitutional protections; the federal constitutional protections only bar government action. However, employees of private employers have civil rights guarantees. They cannot be discriminated against on the basis of race, color, national origin, disability, age, religion, and sex (including pregnancy, sexual orientation, and gender identity). So, if company policy permits certain speech in the workplace, it cannot bar a group (e.g., those of a certain religion) from exercising their right to such speech.
Some states have laws guaranteeing free speech by employees in private companies. For example, Connecticut’s law creates liability for an employer for the discipline or discharge of an employee on account of the employee’s exercise of certain constitutional rights, including free speech. But this protection is conditioned on the activity not substantially or materially interfering with the employee's bona fide job performance or the working relationship between the employee and the employer.
In today’s highly-charged political atmosphere, employees’ views are bound to come out in the workplace. Again, as long as it doesn’t disrupt usual business activities, it likely can’t be barred. California law specifically says employees can’t be discriminated against on the basis of their political affiliation or political activity. However, this doesn’t mean employees can use work time to advance their personal political objectives or interfere with productivity.
Employees’ speech related to the terms and conditions of employment is protected under the National Labor Relations Act (NLRB) This is so for both union and non-union companies. This protection allows employees to voice their opinions on work conditions, compensation, whether to unionize, and even general causes (e.g., increases in minimum wage laws). NLRB-protected free speech covers speech within the confines of the company as well as on social media.
If a company wants to make policy that could be construed as restricting free speech, tread lightly. The majority of states has some protection for employees’ activities when off duty (e.g., their social media postings on their own time). Be sure to take this into account. Best strategy: have the policy reviewed by a labor law attorney.