Dear ReWorker: Does "Free Speech" Protect Me at Work?
March 1, 2017
I was recently terminated from my job as a part-time Administrative Assistant. My performance review was stellar—zero complaints, perfect attendance, great attitude and work ethic—and I had absolutely no indication that my job was even in jeopardy.
One afternoon, I walked into the office ready to work and in less than 5 minutes time, I was sat down, fired, made to sign a letter and given a pittance severance. I was then hovered over while I quickly got my things from my desk drawer and walked out. They would not even allow me to gather my items from the refrigerator. The CFO and COO literally rushed the entire process so fast I couldn't even think straight and I refer to the event as an "ambush."
I understand that an employee cannot be fired due to age, race, gender, or free speech about a topic of social concern. I was fired a short time after I politely expressed my opposition to hunting because the COO was openly discussing his obsession with stalking and killing animals, in graphic and disturbing detail, in my office during business hours.
Did he violate the law in firing me?
Dear Feeling Ambushed,
The First Amendment guarantees all of us the right to say whatever we think, whenever we want to, right? Well, no. You can't be arrested for saying something—with a few exceptions—but you can be fired.
Your boss fired you for objecting to the COO's hunting hobby. There's no right to denigrate your boss's favorite hobby—even if it's a matter of social concern. While there isn't a right to completely free speech at work, there are some instances when your boss can't fire you. Here are three times when speech is protected at work.
(Please note, this is speaking according to federal law, as states vary in their employee protections.)
Speaking a Language Other Than English With Coworkers
If your job involves safety, your boss can require you to speak English while you're actively working. If your customers are English speaking, your employer can require you to speak English in their presence. But even if your boss feels that safety is an issue—requiring you to speak English during active duty—she has to give you a warning before terminating you.
However, you can chat with your coworkers in your native language during breaks. Speaking another language won't protect you entirely though—if you're saying negative things about customers or other staff members, expect to get your head handed to you on a platter.
Talking about Working Conditions
The National Labor Relations Act protects your rights to talk about your working conditions with your coworkers. How extreme are these "rights"? Well, consider the case where an employee posted this about his boss, named Bob, on his Facebook page:
"Bob is such a NASTY [redacted] don't know how to talk to people!!!!!! [Redacted] his mother and his entire [redacted] family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!"
The employee was fired, but the NLRB reversed his termination because they considered his post one that discussed workplace conditions along with a pro-union statement. Since he had coworkers who were his Facebook friends, the company lost out.
This doesn't mean you can't discipline an employee for insubordination, but you should be careful that what your employee is doing isn't discussing working conditions with co-workers—which includes discussions about salary.
Talking About Politics Out of the Office
I thought the political rhetoric would go away after the election ended, but it hasn't seemed to have quieted down any. Can you prohibit political discussion at work? And is it legal to fire someone for supporting or not supporting your chosen political party?
In most of the US, you can fire people for their political views, but you shouldn't. If political speech is causing problems, prohibit it. Make it a blanket policy or let it go. If you do allow political speech, make sure you shut down mean talk. It's bullying, even if you perceive it as a good cause.
I'll leave you with this anecdote: Once upon a time, Barbra Streisand tried to prohibit any photos of her house from being published, and as a result far more people saw the photos—if she had ignored the issue, it likely wouldn't have spread to so many eyes. So, if you're going to take a stand and punish an employee for saying something, stop and consider what this will do to your business if it goes viral. It probably won't go viral, but what if it does? If you'll come out looking reasonable and the law is on your side, go for it. If you'll come out looking like a bully or the law isn't on your side, consider dialing it back.
Photo: Creative Commons