As the Presidential election campaigns heat up, we are likely to see increased political conversations by employees. Unfortunately, while corporations and other organizations have free speech rights, employees do not. In fact, in at least two recent cases, employees have been fired for the simple expressive act of liking someone on Facebook, such as the employees fired by a local sheriff after they "liked" the Facebook page of his political rival. And while speech-related conflicts are perhaps as old as employment itself, the explosion of social media has created new opportunities for expression, such as liking, following, tweeting, or blogging, and therefore has increased the need for protecting employee speech.
Freedom of speech means the right to freely express opinions and views. This should go beyond the literal voicing of opinions to also include expressive conduct such as tearing up a memo in front of co-workers, putting up a poster on your office door, picketing an employer, or liking a Facebook page. The First Amendment to the U.S. Constitution protects freedom of expression by restricting governmental limitations on freedom of speech, but not organizational limitations on speech. When the First Amendment was adopted more than 200 years ago, the United States was largely a rural, agrarian society. The workplace was not a significant aspect of daily life and social interaction. The few employers that existed were very small and not very powerful. How times have changed!
The chilling effect of a lack of employee free speech is revealed by the statement of a state forester in a newspaper story on a controversial plan to allow off-road truck trails in state forests: "I think it would be inappropriate to give my real opinion. We're good employees, we do what we're told." The denial of freedom of speech rights to employees is hard to justify when organizations enjoy these protections. Either this protection for organizations stems from the importance of political discourse in the workplace or from a deeper recognition that the free exchange of ideas is an essential part of being human and is beneficial for all decision-making. In either case, we must ask the same question--given the deep importance of freedom of speech, how can we exclude employees? At the same time, the extension of freedom of expression to workers does not imply unlimited rights to undermine an employer's business or harass co-workers. As in other areas of the employment relationship, a balance is required.
Steve Befort and I have therefore proposed that in the absence of legitimate business reasons or legitimate employee performance issues, U.S. employees should be entitled to a broad freedom of speech protection. The effectiveness of the political process as well as respect for human dignity require that employees be able to exchange ideas, complain, and blog or tweet about issues of either public or private concern. We believe that this can be accomplished in a straightforward fashion with statutory protections for employee free speech in which private and public employers are not allowed to violate an employee's freedom of expression either in or out of the workplace absent a legitimate business justification for a specific limitation. If a worker who has been disciplined or discharged can make a case that this stemmed from expressive activity, then the employer must demonstrate a "substantial and legitimate business reason" for the action to be legally acceptable.
Additional reading: Stephen F. Befort and John W. Budd, Invisible Hands, Invisible Objectives: Bringing Workplace Law and Public Policy Into Focus (Stanford, CA: Stanford University Press, 2009).