Employer Ability to Silence Employee Speech Narrowing in Private Sector, Attorneys Say

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By Martin Berman-Gorvine

May 14 --The longtime rule of thumb is that private-sector employees have no free speech rights, but the issue is not always so cut and dried.

Traditionally, widespread "at-will" employment is thought to severely restrict most of the rights of private-sector employees while they are at work. Employment relationships that are not subject to collective bargaining agreements or other formal contracts usually are at-will arrangements that either party can terminate at any time for any reason or no reason, which would seem to include employer dissatisfaction with the way employees express themselves.

"The commitment to free speech underlying the First Amendment is deeply important throughout our society, including in the workplace, but there is a delicate and important balancing that comes into play when the rights of one individual may impinge on the rights of other individuals," attorney Deborah Marcuse said.

Free speech has been a major topic recently following a couple of high-profile incidents last month: Brendan Eich resigned from his position as CEO of Mozilla Corporation after mounting pressure inside and outside the company based on his donation to California's Proposition 8, which banned same-sex couples from marrying; and Donald Sterling, owner of the Los Angeles Clippers, was banned for life from the National Basketball Association and fined $2.5 million based on racist remarks he allegedly made that were recorded and made public.

Tricky Issue When Execs Involved.

"It is appropriate for any employer--private or public--to consider how the statements of management may have an actual and material effect on its employees and on the workplace as a whole," Deborah Marcuse, a plaintiff-side attorney and a managing partner at Sanford Heisler LLP in New York City, told Bloomberg BNA in a May 9 e-mail. "When those statements display an animus towards a particular protected group, whatever the context in which they are made, they should give rise to an investigation as to whether that animus has colored the workplace or played a role in workplace decisions on hiring, discipline, compensation, promotion, etc."

"The commitment to free speech underlying the First Amendment is deeply important throughout our society, including in the workplace, but there is a delicate and important balancing that comes into play when the rights of one individual may impinge on the rights of other individuals," she added. "Where that individual acts and speaks on behalf of a corporation, or even appears to do so, the potential consequences are particularly acute."

Management-side attorney Tim McDonald, a partner in Thompson Hine LLP's Atlanta office, told Bloomberg BNA May 14 that while the NBA's action against Sterling was "appropriate," it does raise potentially troubling questions due to a possible disconnect between public opinion and anti-discrimination law, notably Title VII of the Civil Rights Act of 1964.

McDonald noted that when Violet Palmer, who became one of the first two female referees in NBA history in 1997, was first proposed for the position, "a lot of players said a woman shouldn't be a basketball referee [for male players]. That's about as sexist as Sterling's remarks were racist." And yet, no action was taken against the protesting players, he said, raising a potential legal question "if you're treating people differently for gender than for race. The societal pressure is different, but the law doesn't recognize a difference."

In Eich's case, a tricky question might have arisen if he had said his opposition to same-sex marriage was based on his religious beliefs, McDonald added. "Now can you fire him? You could walk into an issue if you follow public opinion without considering what the legal ramifications are."

Rank-and-File Effects.

While the aforementioned examples involve the top levels of corporations, the issue also affects the rank-and-file workforce.

In the private sector, "from my perspective, there is no free speech in the workplace," management-side attorney Khristan Heagle of Klein Zelman Rothermel Jacobs & Schess LLP in New York City told Bloomberg BNA May 7. "Employers have the authority and even the duty to curb so-called free speech in the workplace," the duty arising from potentially discriminatory speech by one employee against another.

But Heagle qualified her statement, noting that "there are fairly large, deep pitfalls for employers." For example, she said, New York State has a broadly worded law barring employers from taking action against employees or job applicants for off-duty conduct, including political or recreational activities.

Some employer restrictions on employee speech may themselves be discriminatory, Marcuse said May 8, "if it is a broad policy but selectively enforced."

The Concerted Activity Exception.

Workplace speech has been addressed by the National Labor Relations Board, often in instances of employee postings on social media. The National Labor Relations Act "allows employees to discuss the terms and conditions of their employment to engage in concerted activity" to better those terms and conditions, Marcuse explained. Such rights are not new in themselves, but the NLRB and courts have expanded them significantly into the realm of social media.

For example, in December 2012 the NLRB decided 3-1 that an administrative law judge properly found that a Buffalo, N.Y., nonprofit violated federal labor law by firing five employees for posting Facebook comments in response to a co-worker's criticism of their job performance (Hispanics United of Buffalo Inc., 359 N.L.R.B. No. 37, 12/14/12 [released 12/19/12]; 30 HRR 1407, 12/31/12), and just weeks ago an NLRB ALJ held that Kroger Co. of Michigan interfered with employees' federal labor law rights by maintaining a communications policy that required workers to supplement any online postings about their employment with a statement that Kroger did not necessarily share their views (Kroger Co. of Mich., NLRB ALJ, No. 7-CA-98566, 4/22/14; 32 HRR 439, 4/28/14).

But that such cases aren't necessarily a slam dunk for the plaintiffs' side is shown by a November ruling by an ALJ, who found that two employees of a nonprofit youth center engaged in concerted activity when they discussed their workplace concerns on Facebook, but they forfeited any legal protection under federal labor law when they made comments indicating they intended to be uncooperative or insubordinate to their employer (Richmond Dist. Neighborhood Ctr., NLRB ALJ, No. 20-CA-91748, 11/5/13; 31 HRR 1253, 11/25/13).

An ironic result of this aspect of the law, McDonald said, is that in "union-protected speech" employees are allowed to make remarks that "directly trash" their employer, whereas other kinds of remarks they make that may be equally offensive aren't protected at all.

'Orwellian Scope.'

Still, the NLRB "has been stepping out, especially where the employers have taken steps to prevent employees from disclosing confidential information and require them to express themselves with courtesy and not say anything bad about the company," Bryan T. Arnault, a labor attorney who works primarily on the plaintiffs' side, told Bloomberg BNA May 8.

"If workplace policies and rules are ambiguous and broad, they can lead employees to believe they cannot engage in protected discussion, and [the policies] will be deemed overbroad," added Arnault of Blitman & King LLP in Syracuse, N.Y. In designing employee handbooks, therefore, employers "need to be careful not to interfere with employee rights under the National Labor Relations Act," he said.

Such workplace civility policies imposed by employers "are always astonishing to me in their Orwellian scope," Marcuse said. Since the NLRA's Section 7 protects concerted activity, and social media postings by definition involve more than one person, "it's very likely an employee can make a colorable argument that [his or her postings] are covered by Section 7," she said.

Concerted employee action based on speech now extends into the previously taboo area of salaries. Where NLRA Section 7 provides "a narrow definition and an individual, administrative remedy, such that it is fairly ineffectual," Marcuse said, President Obama's executive order that federal contractors must allow their employees to discuss compensation (32 HRR 371, 4/14/14) is broader.

This issue ties in to that of the executives making controversial remarks, she added. "A clear commitment to compliance with the law on the part of an employer benefits morale internally and burnishes a company's image in the public sphere, both of which are good for the bottom line," Marcuse said.

States are stepping into the breach in this area too, with such whistle-blower protection statutes as New Jersey's 2007 Conscientious Employee Protection Act, Marcuse noted.

By Martin Berman-Gorvine

To contact the reporter on this story: Martin Berman-Gorvine in Washington at mbermangorvine@bna.com

To contact the editor responsible for this story: Simon Nadel at snadel@bna.com