National Labor Relations Act (NLRA)<\/a> in union and nonunion settings. Concerted activity examples include talking with co-workers about wages or working conditions and starting a petition for better working hours.<\/p>\nEmployees also have the right to discuss possible unlawful conduct in the workplace. For example, some federal laws protect employees who complain about harassment, discrimination, and workplace safety violations from adverse employment actions, such as termination.<\/p>\n
State laws vary, so employers should seek legal counsel to understand if any laws enhance workers\u2019 rights to discuss specific topics in the workplace or off duty.<\/p>\n
Workplace Trends<\/h2>\n
The American workplace is continually evolving and shaped by various drivers. To prepare for situations concerning First Amendment rights, employers can explore the following free speech trends and consider how they may influence their own workplace or workforce:<\/p>\n
Social media<\/h3>\n
In today\u2019s digital era, many employees have social media accounts and post about their lives, which may include time both on and off the clock.<\/p>\n
Employee posts may be protected if the employee discusses working conditions and other labor relations matters. In some states, this includes employee speech made off the clock. Social media policies are a measure that can help employers set the tone and establish post guidelines and expectations.<\/p>\n
Although employers may be inclined to monitor employee social media activity, they should be aware of the potential legal pitfalls that come with it.<\/p>\n
For example, several states do not require employees to disclose if they have a social media account. As more organizations employ a distributed workforce, email and other communication tools must also be considered, as the employer has access to and owns anything shared in those channels. Employers should ensure workplace policies can\u2019t be perceived as restricting protected employee activity.<\/p>\n
Pay transparency<\/h3>\n
As more states adopt pay transparency laws, compensation is top of mind for many employees. The NLRA protects employees\u2019 right to discuss employment terms and conditions. For example, workers could discuss their wages with each other and then ask for raises if they determine they\u2019re not being paid enough.<\/p>\n
LGBTQ+ rights<\/h3>\n
Expressive conduct and speech help many LGBTQ+ individuals affirm their identities, exercise autonomy, and participate equally. Courts acknowledge that speech or expression revealing one\u2019s sexual orientation or gender identity holds significant value and is entitled to First Amendment protections.<\/p>\n
Political speech<\/h3>\n
Free speech laws vary by state, and political expression is one topic that\u2019s increasingly receiving protection in the workplace. For example, California labor codes do not allow employers to make or enforce any policy that attempts to control the employee\u2019s political activity. It\u2019s also illegal for any employer to threaten or discharge an employee because of their political activity.<\/p>\n
Manager training<\/h3>\n
Employees with an issue or concern often take it up with their supervisors instead of HR. Many workers expect their managers to be able to handle and respond to workplace concerns, including those involving free speech. To prepare for those situations and avoid discrimination or other related claims, employers should offer training to front-line managers. Ongoing training should outline how to acknowledge a complaint, escalate the complaint to be investigated and make proper adjustments or corrections to reduce the chances of the problem happening again.<\/p>\n
Employer Takeaways<\/h2>\n
The bottom line is that most employees do not have a constitutional right to free speech at work. However, employers should continue to monitor trends shaping today\u2019s workplace and consider how they may impact employment practices.<\/p>\n
To avoid compliance issues, employers should familiarize themselves with the various policies that protect employees: the National Labor Relations Board, the Occupational Safety and Health Administration, and the U.S. Equal Employment Opportunity Commission. Agencies constantly revise priorities and policies, so staying on top of the latest rules is essential.<\/p>\n
\u00a9 2023 Zywave, Inc. All rights reserved.<\/em><\/p>\nNeed Help with HR Compliance Issues?<\/h2>\n
When it comes to staying informed of changes to rules and regulations, it can be overwhelming, especially if you don’t have a full-time HR staff. That’s where GTM can help. Our HR Support & Consulting service<\/a> fills in the gaps so your HR compliance is up to date, leaving your management team free to focus on growing your business. Fill out the brief form below for more information.<\/p>\n <\/p>\n
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The First Amendment protects Americans\u2019 freedom of expression, but it doesn\u2019t prevent a private employer from setting its own rules or terminating an employee for saying something the organization doesn\u2019t like. Although employees don\u2019t have a constitutional right to free speech in the workplace, employers should still be aware of any laws that protect workers\u2019 speech in certain situations.<\/p>\n