The First Amendment “Playing Field”: Regulating Speech in the Workplace

By on February 28th, 2014

Posted in New Jersey

In recent news, the National Football League has proposed a new rule that would establish a yardage penalty for any on-field use of the “N-word.”  The proposed rule has stirred up much debate: some legal, some cultural, some editorial, all polemical. It is not the purpose of this blog to step foot onto that gridiron of controversy, though a simple threshold question might be whether the use of the “N-word” on the playing field constitutes protected speech.  Nor is it the purpose of this blog to evaluate whether Roger Goodell can impose such a rule in his “workplace.”  Rather, the NFL’s proposal provides an opportunity to examine a private sector employer’s right to regulate speech in the workplace.

The right to freedom of speech is fundamental and is one of our most cherished rights, yet it is not absolute.  Federal free speech protections apply only to the government.  The First Amendment to the U.S. Constitution, for example, does not apply to private employers. Generally speaking, private sector employees are not entitled to First Amendment free speech protection, even when speaking about job-related matters in the course of their employment duties results in adverse employment action.  For example, employers can prohibit employees from engaging in speech during work time that is not work-related.  Similarly, employers must take action against employees who engage in speech that would violate an anti-harassment policy or create a hostile work environment, and private employers have every right to regulate or prohibit any category of “unprotected” speech such as “fighting words,” offensive speech or obscenity.

Of course, there must be some balance between what an employee can and cannot say in the workplace and the legitimate interests of the employer in regulating speech to promote harmony and the effective operation of its workplace.  If an employee’s speech disrupts the workplace, affects job performance or obstructs productivity and the employer disciplines or terminates the employee, the employer should not face liability for violation of First Amendment free speech rights.  Still, an employer must exercise caution in regulating speech in the workplace.  Unwieldy or overly burdensome policies could yield unhappy and unmotivated employees.

While there is not much jurisprudence evaluating a private employee’s First Amendment rights in the workplace, at a minimum, a private sector employer should have the same degree of control over its employees’ speech in the workplace as a public sector employer.  In Pickering v. Board of Education, 391 U.S. 563, 568, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968), the United States Supreme Court recognized that a public employer has an interest in regulating the speech of its employees that differs significantly from the regulation of speech by the citizenry in general. The Court then established a general principle governing the constitutionality of government restrictions on the speech of its employees (in the public sector): in evaluating the constitutionality of government restrictions on an employee’s speech, “a court must arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the [s]tate, as an employer, in promoting the efficiency of the public services it performs.” Id. at 568.  Notably, if an employee’s speech cannot be fairly characterized as constituting speech on a matter of public concern, the public employer’s interest in managing its office outweighs any First Amendment rights of the employee.  In other words, if an employee’s speech can be fairly described as relating to any matter of political, social, or other concern to the community, it may be protected.  Otherwise, it may not.

In Garcetti v. Ceballos, 547 U.S. 410, 413, 126 S. Ct. 1951, 164 L. Ed. 2d 689 (2006), the Supreme Court considered “whether the First Amendment protects a government employee from discipline based on speech made pursuant to the employee’s official duties.”  In reaching its decision, the Supreme Court emphasized that “[g]overnment employers, like private employers, need a significant degree of control over their employees’ words and actions.”

When considering the issue of employee free speech rights in the private sector, courts have consistently held that private employers can significantly curtail employee free speech rights.  For example, in the recent case of Schumann v. Dianon Sys., 304 Conn. 585 (2012), the Supreme Court of Connecticut ruled that a private sector employee was not entitled to free-speech protection, even though his speech concerned job-related matters, where the speech was disruptive to his employment, interfered with his job performance, strained his relationship with his supervisor, created division, and was insubordinate.  A good counterpoint to this decision is the Third Circuit’s ruling in Novosel v. Nationwide Ins. Co., 721 F.2d 894 (3d Cir. 1983), in which the court found a violation of public policy where an employer terminated an employee for refusing to participate in the employer’s political activities (lobbying efforts).  The critical distinction here, obviously, is that speech relating to matters of public concern may be subject to protection, while speech concerning exclusively private matters, even matters relating to employment, may not.

These principles are fairly simple and straightforward but, again, because most speech protections concerning the private sector are based on state statutes and case law, employers should seek counsel to determine what speech they may regulate, versus what speech is entitled to protection. Furthermore, employers should ensure they have anti-retaliation policies to protect employees from negative or adverse employment action based on protected speech.  An employer looking to establish policies and procedures governing speech in the workplace should consult with a qualified employment attorney, who can best assist the employer in understanding the “playing field” of free speech rights in the private sector.

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