Speaking Freely
Are you breaking First Amendment law when you fire that loudmouthed employee?
Suppose you have an employee who denounces your business
decisions at every opportunity (and at the worst times), or one
whose vocal opposition to gun control or abortion or government
policy has become a constant irritant in the office. The U.S.
Constitution guarantees citizens a right to free speech, so you
can't do anything about it. Or can you?
In many cases, you can. Workers assume they have a
constitutional right to say almost anything they want, but the law
protects only certain types of speech. And while the law in some
states protects employees from retaliation for exercising their
First Amendment rights, courts often defer to employers who
discipline workers over letting them speak their minds, if they
have a legitimate business interest in doing so.
"The term 'free speech' can be overused," says
Brian Clemow, a partner in the law firm Shipman & Goodwin LLP
in Hartford, Connecticut. "The courts have defined fairly
narrowly the types of expression that are protected." Clemow,
chair of the firm's labor and employment practice, explains
that, generally speaking, the law protects only political speech
and matters of public interest or concern. "Statements
concerning purely private matters, such as an employee's
individual grievances about his job or his boss, don't qualify
for protection." So if you decide to fire an employee because
his or her griping about personal issues is becoming disruptive in
the workplace, he or she will have adifficult time convincing a
court that you violated free speech rights.
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Even if the employee in question is addressing matters of public
concern, you can usually put a lid on it if you have a legitimate
business reason. For example, if the employee plasters graphic
anti-abortion posters all over his or her workstation and it causes
an uproar among co-workers, you can insist that the offending
posters come down. If the political buttons on the employee's
uniform imply to the public that your firm supports that candidate,
you can ask that they not be displayed near your company insignia.
And if an employee's public accusations demoralize your work
force and damage your company's image, you can probably take
disciplinary action.
Steven C. Bahls, dean of Capital University Law School in
Columbus, Ohio, teaches entrepreneurship law. Freelance writer Jane
Easter Bahls specializes in business and legal topics.
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