John Pueschel, partner in the Winston-Salem office of Womble Bond Dickinson, examines the limits on employee free speech and use of social media against the background of recent events at Google and in Charlottesville.
The right to freedom of speech is a core value in our constitutional form of government. Of course, sometimes the expression of that right can give rise to conflict, disagreement, and offense. While such consequences might be appropriate and valued in the context of a governmental or political debate, they are rarely desirable in a business setting.
Employers and employees must balance two competing ideals. The first ideal holds that employees, as individuals and citizens, should be able to speak their minds about issues they feel are important, especially when they are not working. The second ideal holds that businesses should be able to insist that workers do the jobs that they are hired to do, and refrain from voicing opinions that cause distraction or which are contrary to corporate values and policies.
This tension is greatly complicated by the fact that the internet and social media permit for speech outside of work to be shared with (or discovered by) millions of people in an instant. Thus, matters that might once have been resolved quietly (or perhaps never have been an issue at all) are often amplified and publicized to such an extent that a business suffers harm to its reputation and good will, or at minimum, is subject to a significant distraction.
Often to the surprise of employees, businesses typically have a great deal of latitude under the law to terminate employment as a result of public speech by employees, regardless of whether that speech occurs at work or outside of the workplace and working hours. If an employee’s public speech becomes a distraction, or causes the company to be seen in a negative light with customers, or is in conflict with company policies, employers often find it expedient to terminate the employee to bring the matter to an end as fast as possible, protect their corporate image and brand, and evidence their corporate values or disagreement with the employee's speech. When that happens, employees generally find that that they have little or no legal recourse.
Employee Speech, Public Controversy, and Employer Reactions
Two recent events illustrate these challenges, one involving speech at work, and the other off-the-clock. First, in an incident that gained attention on both sides of the Atlantic, a male engineer at tech giant Google wrote an internal memorandum arguing that the company had a “left bias” and should consider whether its diversity policies were ill-conceived. Among other things, the engineer asserted that innate differences between the sexes explained in part why more men worked in tech, and the gender differences in pay. The so-called “Google Memo” created offense internally among Google employees, and when the memo became public, the views expressed in it ignited a firestorm of controversy on social media and many stories and opinion pieces in the traditional press. The company and its CEO had to devote significant time and effort, internally and externally, to address the controversy. Google ultimately fired the employee for advancing gender stereotypes in violation of the company’s anti-discrimination and anti-harassment policies.[i]
Second, in Charlottesville, Virginia, groups including white supremacists gathered to voice opposition to the removal of statues commemorating soldiers of the rebellious Confederacy in the American Civil War, which many view as offensive reminders of the slavery permitted in the U.S. until abolished during the Civil War. Counter-protestors also gathered and violence erupted, resulting in the death of a counter-protestor. In the aftermath, a national debate ensued with a renewed focus on race and justice in America, including the treatment of African-Americans by law enforcement and the justice system.[ii] In the days following the protests, many people took to social media to express opinions on all sides of the matter. Some on social media began an effort to post the pictures of those who had attended the Charlottesville protests who were asserted to be white supremacists, and asking for help identifying them so that their views could become known to their employers.[iii] One such person was identified as an employee of a national restaurant chain who worked in an entirely different state than where the protests occurred. The restaurant chain quickly fired the employee, and made a public statement that the company believed in the fair treatment of all people and the safety of employees and guests.[iv]
While the workers in these two cases may have felt aggrieved for being fired for speaking their minds, they likely found that they had little legal recourse for the termination of their employment.
The Legal Frameworks of Employee Free Speech and Social Media
Both the United States and the United Kingdom cherish the rights of their citizens to speak and express themselves freely. In both countries, however, those rights are really quite limited when it comes to speech and expression by employees, especially for “at will” employees in the private sector in the U.S.
In the U.S., there is a common misconception that the constitutional right to free speech provides greater protection for employees than it actually does. The First Amendment to the U.S. Constitution limits the government, not the private sector, stating in relevant part that “Congress shall make no law . . . abridging the freedom of speech” (emphasis added). So, under the Constitution, unless there is governmental action to stifle speech, there is no legal recourse. What this means, in practical terms, is that employees of private, non-governmental businesses have no First Amendment protection if their employment is terminated due to their speech.
Some states offer additional free speech protections to employees of private sector businesses, but typically those protections are limited to participating in political campaigns, elections, or voting.[v] A few states offer some limited additional employment protections for off-the-clock conduct.[vi] In the private sector, in our experience, claims of violations of such laws are rarely made.
The most significant free speech protection for private sector employees in the U.S. derives from the National Labor Relations Act (“NLRA”). Indeed, in the age of social media, the NLRA has proven to be the law most often relied upon by workers who claim that they were terminated for lawful speech. Section 7 of the NLRA states that “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .” The courts and the National Labor Relations Board (“NLRB,” the government agency charged with enforcing the NLRA) have interpreted such “concerted activities” broadly under Section 7 to include employee speech that relates to the terms and conditions of employment, such as wages and working conditions-even if that speech is not directly related to union organizing. (Indeed, the author of the “Google Memo” discussed above has reportedly sought the protection of the NLRA, and filed a charge challenging his termination with the NLRB.[vii])
In recent years, NLRB has been very aggressive in speech cases involving non-union employees under Section 7, particularly with regard to employees terminated for violating company social media policies when speaking about their employer or supervisors, or commenting on social issues in ways that caused offense to co-workers or customers. In such cases, the NLRB has frequently found that businesses have gone too far in taking adverse action against employees who are speaking about the terms and conditions of employment, or have such limiting policies that it may have a chilling effect on employees exercising their right to organize under the NLRA. For this reason, the trend in recent years is for businesses to move away from very strict, authoritarian policies towards more balanced policies on employee speech and social media. Such policies often acknowledge that employees have the right to speak their minds, but also caution employees to be aware of how their online words might be perceived, remind them of company policies regarding discrimination and harassment, and make clear in their posts that they are not speaking on behalf of their employer.
Lastly, it is essential to understand that state and federal laws prohibiting discrimination, harassment, bullying, and threatening/violent speech in the workplace are often implicated in employee speech cases. Federal laws like Title VII of the Civil Rights Act of 1964, and similar state laws, make it unlawful for most employers to engage in or permit discrimination or harassment on the basis of an employee’s race, color, sex and pregnancy, age, national origin, disability, genetic information, veteran status, and religion. In addition, these laws require an employer to promptly address complaints of such unlawful behavior. For this reason, virtually all but the smallest companies implement written policies affirming their commitment to equal employment opportunity, and prohibiting discrimination, harassment, and hateful, offensive, or threatening speech. (As a best practice, companies with social media policies also incorporate these company and legal commitments into those policies.) These anti-discrimination and anti-harassment policies are often relied upon when responding to instances when employee speech results in offense or controversy, such as in the two examples mentioned above. Because of the legitimate concern that appearing to condone discriminatory, harassing, or hateful speech by employees could be used against them in an employment claim, employers often will reprimand or terminate the employee for violating company equal employment opportunity policies, even in cases where there is no significant publicity or press coverage.
Joanne Boyle, partner in the Bristol office of Womble Bond Dickinson, looks at freedom of speech from a UK standpoint.
Freedom of expression is a fundamental human right in the UK, which is protected under the Human Rights Act. The Act incorporates the European Convention on Human Rights into domestic law. Article 10 of the Convention states that "Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority… The exercise of these freedoms… may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society…"
Under the Act, it is unlawful for public authorities to act in a way that is incompatible with the Convention, and UK courts have to interpret legislation in a way that is compatible with the Convention. Rights set out in the Act are directly enforceable against public sector bodies but employees in the private sector only have limited rights.
Employers can set rules around the types of behavior they will not tolerate in the workplace and it is normal for a staff handbook to include equal opportunities and anti-harassment and bullying policies, which will provide that the expression of views that are discriminatory or offensive can lead to disciplinary action being taken against the individual, which may lead to dismissal. IT and social media policies will also set out whether the employee can use the employer's IT systems for personal use and, if so, the limits on this and how it will be monitored; a social media policy will state that the employee must not do anything that might damage the employer's reputation. A breach of either of these policies could also lead to disciplinary action; for example, the Employment Appeal Tribunal ruled that the dismissal of an employee for non-work related tweets was potentially fair where the tweets could be seen by staff and customers.[viii]
Where an employee is dismissed as a result of their exercise of freedom of speech, they may have a claim for unfair dismissal if they can show that their employer did not have a valid reason for dismissal and/or did not follow a fair procedure. They may also have a discrimination claim if they were dismissed or disciplined because of a protected characteristic (age, disability, gender reassignment, marriage or civil partnership, pregnancy and maternity, race, religion or belief, sex, or sexual orientation).
In addition, under the whistleblowing laws, a worker who has exercised their freedom of speech by making a protected disclosure may have a claim if they are subjected to a detriment as a result.
Following the Charlie Hebdo attack in Paris in 2015, the Equalities and Human Rights Commission (Great Britain's national equality body) published useful guidance[ix] on the legal framework protecting freedom of expression in the UK and the circumstances in which it may be restricted in order to prevent violence, abuse or discrimination.
So, What’s an Employer To Do?
We suggest taking steps to reduce the risk of problems arising in the first place by communicating with employees about corporate values, policies, and expectations regarding speech and social media. These steps include the following:
Implement clear and effective email and technology policies that inform employees of what personal use, if any, is permitted on company technology. To the extent that the employer wishes to monitor employee use of technology for compliance with company policy, the employer should make sure it understands what legal restrictions on such monitoring are applicable in that jurisdiction, and what privacy rights an employee might have under applicable law.
Implement an appropriate social media policy, and train employees on that policy and the company’s expectations.
Educate and train employees on the company’s corporate values and policies regarding equal employment opportunity, and prohibitions against discrimination, harassment, and hateful, offensive, or threatening speech.
Have a response strategy in place to address both internal complaints and controversies involving employee expression and social media, and those controversies that may become public and pose risk to the company's reputation or brand.
If an issue comes to light, treat employees in a consistent manner.
It is likely that no business or employee wishes to be embroiled in a very public and very negative incident arising from a clash between employee speech and corporate values and policies. Nonetheless, given these turbulent times and the prevalence of social media, it seems clear that such incidents will continue to occur. As such, it is wise to take steps to reduce the chance that such incidents might occur, and to be prepared to address them if they do.
[i] Further details can found in many of the news stories covering the controversy in the U.S. and the U.K., including https://www.usatoday.com/story/tech/2017/08/07/engineer-behind-google-anti-diversity-memo-reportedly-fired/547348001/ and http://www.telegraph.co.uk/technology/2017/08/08/google-fires-employee-behind-anti-diversity-memo-perpetuating/.
[ii] Indeed, for fans of American football, many National Football League (“NFL”) players have taken to sitting or kneeling during the playing of the American national anthem before games, in protest of the injustices perpetrated against African-Americans and others. This prompted President Trump to state that anyone who did not stand in respect of the U.S. flag during the national anthem should be “fired.” This statement has caused even further controversy, with more players choosing to “take a knee,” including players at the recent NFL game played in London on September 24 between the Baltimore Ravens and Jacksonville Jaguars, resulting in boos from some in attendance. This situation is yet another notable example of the potential for negative publicity and possible brand damage to an enterprise when employees take public stands that prove divisive or unpopular with a segment of its customer base. See https://www.theguardian.com/sport/2017/oct/01/nfl-protests-baltimore-ravens-jacksonville-jaguars-donald-trump
[v] As one example of a good compilation of such state laws, see Eugene Volokh, Private Employees’ Speech and Political Activity: Statutory Protection Against Employer Retaliation, Texas Review of Law & Politics (2012), available at http://www2.law.ucla.edu/volokh/empspeech.pdf.
[vi] As examples, Colorado law prohibits, with some exceptions, adverse actions for engaging in lawful activities outside of work, see Colo. Rev. Stat. Ann. § 24-34-402.5(1), and North Carolina prohibits discrimination for off-the-clock use of lawful products, see N.C. Gen. Stat.§ 95-28.2.
[viii] Game Retail Ltd v Laws UKEAT0188/14.