No Free Speech Rights Under Private Employers

Last week, we held a presidential election in this country. You may have heard about it.

When I woke up Wednesday morning (after very little sleep, like a lot of Americans), I found social media ablaze with fuel being thrown from all sides. I was barely two steps into Facebook when I found my first post from an employee (in addition to practicing law, I own a few companies, including a retail business) spewing some nasty words at another candidate’s voters. Jump two posts away, there’s a different employee posting a personal letter directed at all voters for the other top candidate.

I realized this was going to be a tough day at the office, and I decided to put a stop to it with a new message and a new policy for my staff:

“Greetings, team! Yesterday's vote concluded a rigorous and divided election season. The store takes no stance on elections; it is our goal to be a safe, neutral shopping site for customers of all beliefs. While you are on the clock, I expect the same neutrality from each of you. We will not tolerate derogatory comments that may hurt a staff member or customer from ANY side, wherever directed. If anyone tries to engage you in such derogatory talk, I ask that you please ignore it or kindly shut it down, or involve me if you feel threatened in any way. Regardless of the election's outcome, we're all here together and I would like us to live in peace. Thank you!” [edited for brevity]

Did I limit my staff’s ability to speak freely? You bet. Was it legal? YES.

There is a common misunderstanding that freedom of speech is a universally protected right in the USA, but the truth is that the First Amendment only protects us from government interference with our speech. Specifically, it provides that “Congress shall make no law…abridging the freedom of speech.” Thus, government workers are afforded certain protections (here is a good site for more detail on that). 

As for private employers, however… go ahead and limit away. No policy is required in order for an employer to take action based on an employee's speech. But since an employee handbook may have the effect of limiting an employer's rights, it’s still prudent to discuss what you want to do with counsel before setting out a formal policy regarding employees.

Even though my own store policy addresses only employees’ time “on the clock” and derogatory political speech, the law doesn’t stop there. Examples: Take Lynne Gobbell, who was fired in 2004 for sporting a John Kerry bumper sticker on her car, or Adam Smith, who was fired from his job as CEO at Vante when he berated a Chick-fil-A employee for working at a company he called “homophobic.” Employees have been fired for social media activity, clothing choices, and even social drinking. Note also that these same limitations do not apply to employers themselves, who are free to verbalize their political views and even encourage employees to vote a certain way. 

I try to be a good and fair boss, and I don’t believe in interfering with my staff’s personal lives or even most of their opinions at work, and I suppose most other entrepreneurs are similarly open-minded. Today, I write primarily for awareness, but also to remind other employers that there are valid reasons you may occasionally want to restrict speech, even beyond the benefits of productivity and pleasantness. The biggest is probably a fear of lawsuits alleging that you created or permitted a hostile work environment, but another is the prevention of lost customers, profits, and employees. You, as a private business owner, do have the right (and perhaps even the obligation) to keep the peace.