Episode 233 - Addressing Employees’ Speech in the Workplace

Welcome to the Workplace, a podcast by Cal Chamber. I'm Matthew Roberts, Associate General Counsel with the California Chamber of Commerce. Hello listeners. In the age of digital communication, where news stories are instant and we can communicate with each other in more ways than we can count, current affairs are leaking into the workplace more than ever. Matched with an increasing willingness from employees to speak out on current events, employers are struggling more than ever with understanding when and and how to address statements or conduct that they may feel like crosses the line in the workplace. To discuss the legal landscape and some best practices around addressing employee speech, we welcome back Bianca Saad, Cal Chambers General Counsel for Labor and Employment and Vanessa Green, Cal Chambers Employment Law Subject Matter Expert thank you for being here, Bianca and Vanessa.

Absolutely, Matt. Thanks for having us.

It's a pleasure to be here. Thanks, Matt.

All right, well, Bianca, let's go to you first, and I think we start with the most common confusion we have in the workplace around employee speech, which is does the First Amendment to the US Constitution apply to the workplace?

Great question, Matt. And of course, this is often something we hear from employees, especially when they see other employees getting disciplined or terminated from their employment for what they say. So the response is this idea of freedom of speech under the First Amendment. But the basic rule of thumb is the First Amendment only protects individuals from the government. So if you're a private employer, the First Amendment isn't going to be a consideration.

Okay, Bianca, so does this mean that employers have freedom to discipline any employee for any speech the employer doesn't like?

No, not necessarily. So while there is no First Amendment protection for employee speech in the private sector, there are protections under both federal and California law that may protect employee speech depending on the content of that speech speech. So the primary federal law that applies is the National Labor Relations act or the nlra, which generally provides most employees the opportunity to engage in collective action for improvement of their working conditions. Often, employees may join together to engage in speech that the employer doesn't like because they are complaints about the workplace. But the speech is nonetheless protected because it's done with the aim of improving employees working conditions. This can extend to political speech when the political issue relates to working conditions, for example minimum wages. What makes the NLRA particularly important and what's important for everyone to know is that it applies to nearly all private employers, whether or not a workforce is unionized. Now, moving to California law, we have certain provisions in the Labor Code that protect lawful off duty conduct and prohibit employers from coercing employee political viewpoints. So when evaluating any type of employee conduct or speech. We need to work from these sets of laws first to determine what, if anything, we can do to address it.

Okay, so we've got the legal framework and of course, operating within that framework, we can start to evaluate the kinds of policies that we can have. Vanessa, let's bring you in. Since you have substantial expertise in designing workplace policies and handbooks first, have you seen employers that already have policies restricting speech? And if so, how should they make sure that they are designed to comply with the laws that Bianca just talked about?

Yes, I've absolutely seen employers have policies that restrict speech in some way. You've probably seen these too. They're pretty common, actually. So for example, things like codes of conduct or insubordination policies, even non solicitation policies, those are policies that can spell out sometimes what employees can and can't say at work, but it can even go beyond that. So policies like dress code policies, you have the required harassment, discrimination and retaliation policy in California. Those can also place limits on certain types of speech or expression. So I think, you know, to answer your second question, Matt, it is really important that employers design and enforce these policies carefully. So some ways that employers can do this are first, they want to make sure they're avoiding overly broad policies. We have this case called Stericycle that was under the National Labor Relations Board, which essentially said that if a policy can be reasonably read to discourage employees from talking about things like wages or working conditions, then that's a problem, even if the employer didn't mean for that policy to be taken that way. So these policies, they really need to be clear, they need to be narrow, they need to always tie back to some kind of legitimate business reason for the restriction. Other things that employers should do is stay viewpoint neutral and meaning that if they restrict speech, it should be done across the board. So in other words, you can't allow one side of an issue to be voiced, but not the other. And then lastly, employers should really think about the need to enforce these policies consistently. So policies that sit on a shelf, so to speak, and aren't really used until someone or something unpopular gets said are risky. Enforcement needs to be uniform, otherwise it's going to look retaliatory or discriminatory.

All right, Vanessa, so clearly political speech and politics themselves have taken on a different character in recent times. How would you address a situation where a political disagreement becomes a conflict in the workplace between employees? Would you even go so far as to create a policy just prohibiting political speech in the workplace altogether?

Yeah. So Managing these types of conflicts can be really tricky because of all those legal protections that Bianca mentioned. And then on top of that, employers do have an obligation to prevent harassment in the workplace. So we have this like, kind of challenge where we're trying to draw the line between speech that's protected, but also conduct in the workplace that's crossing into an unlawful territory. And those are tough situations. So I think what employers want to remember here is a thorough and partial investigation is really your best tool to handle these situations. You want to look into all of the facts. You want to figure out was this dispute over working conditions or over the politics of working conditions, which those things are, could be protected. Right. Like Bianca talked about, or are we tending to lean towards a more negative conduct that's directed at a protected class, for example, but it's being framed as political speech. So you really want to dig into the facts and the investigation process is going to help employers sort out these things and really address the actual underlying problem without slipping into some kind of viewpoint discrimination. And then as for your second question, I would say yes, a policy prohibiting political speech in the workplace can definitely be something employers can consider. The decision to restrict political speech, though, it can be tricky. So we have things like I talked about earlier, a dress code. Right. Or a non solicitation policy, things like that. You can decide to do these types of policies. It's ultimately going to be up to you, the employer. But when we write them, we want to be careful for the reasons we've talked about. We want to make sure that these policies give the entire workforce clear guidance and they're not preventing things that we can't prevent them from saying. We want to make sure that we're trying to prevent things from escalating further in the workplace. Right. So we just have to be really careful when we're drafting these types of policies.

Yeah, And I think that makes a lot of sense. And you know, of course, one of the most noteworthy or common aspects of employee conduct and speech is the consequences of when this conduct or speech occurs after hours and away from the workplace. So, Bianca, can an employer police this conduct? And what situations would this policing really be limited to, if at all?

Great question. So a common misunderstanding is that employers can't do anything at all when the conduct occurs off the clock, away from the work site, or even on personal devices. So this is not only untrue, but it can actually open up the door for potential liability. As an example, we've recently seen cases where the courts evaluate a variety of claims for harassing conduct that didn't occur at work or on the clock. And in each case, the court found potential liability specifically because the employer failed to address the conduct. So the first lesson is don't ignore a complaint from an employee just because it originates from off duty conduct. Next, when we look to address this conduct outside the workplace, we need to evaluate the conduct for potential political or otherwise legally protected speech and balance those protections with whether the conduct crosses the line into potentially unlawful harassing conduct or otherwise disrupts the workplace or, you know, harms the causes reputational harm or something causing some other negative effect.

This is another area, though, where, you know, Vanessa talked about thorough, impartial investigations. And so this is one area where an investigation may not only be preferred, it in certain situations, it may be required, again depending on the nature of the complaint. So we're trying to address the conduct, not the viewpoints.

All right, well, Vanessa, let's close out with you. Beyond just good policy craftsmanship and enforcement, what other tips might you have for employers navigating these issues?

I think the first step, Matt, is that once employers have these policies in place, it's really important to be open with employees about why these policies exist. So help your employees understand that these policies are about creating a respectful work environment. They're not about shutting down viewpoints. And I think that transparency really helps employees understand the intent and it helps reduce the perception of bias. The other thing to keep in mind is that these policies are only as effective as their enforcement. So training is really crucial. Right. All employees should know and understand the rules within the policy. Supervisors and decision makers really should be specifically trained on how to apply these policies correctly and consistently. So don't forget training. And then just as important as training is setting the tone at the top. So when we're thinking about supervisors and leaders, we obviously want them to be trained on the policy, enforce the policy, but it's more about, like, how they carry themselves and set the tone and are they really living the policy? Right. Are they setting the right example? Are they creating a culture where political comments and things that are negative being said are tolerated or not? Right. Are they modeling that respectful behavior? They really want to think about the culture that we're shaping because that's really going to go a long way in terms of how all of these things we've been talking about impact our workplace. And then lastly, I think employers should regularly revisit their policies and trainings, right? Because this kind of creates space for employee feedback. It creates space for the evolution of policies as laws and social dynamics are changing quickly. And we want to just make sure that we're adjusting our policies along with our culture in our workplace, the dynamics that we're seeing in and outside of our workplace. Right. That's going to make employees really feel more heard, and it's just going to make everything we're doing more relevant and hopefully more compliant.

All right. Well, I know this is a really sensitive and oftentimes difficult conversation for employers to have, so thank you, Bianca and Vanessa, for joining me today to kind of help employers navigate these employee speech issues and kind of take these first steps towards creating a more respectful workplace.

My pleasure, Matt. Thanks for having us.

Yeah, thank you, Matt. Appreciate being here.

And thank you, listeners, for joining this discussion on the workplace. Please share and subscribe to Cal Chamber's podcast by visiting calchamber.do.