Free speech is not a shield for bad employee behavior

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WASHINGTON — The First Amendment protects the right to free speech, but it doesn’t give anyone the right to be employed.

That was one of the main takeaways from James Reidy, a shareholder at employment law firm Sheehan Phinney Bass + Green PA, who spoke on the topic during a session this week at the Society for Human Resource Management’s legislative conference.

“Nowadays we live in a politically charged environment,” Reidy said. “It’s fair to say it affects our relationships with others, but it’s not appropriate in the workplace.”

While free speech sounds like an open concept, employers have every right to address — and even discipline — workers who use inflammatory language in and out of the workplace, Reidy said. Inappropriate language can include verbally demeaning another coworker’s political or religious beliefs, or posting in support of hate groups on social media.

“The First Amendment protects your right to free speech from the government; it has nothing to do with the private sector,” Reidy said. “You can’t say whatever you want in the workplace. Employers generally have control in how they discipline people who create disturbances in the workplace, including termination.”

Reidy concedes that political party affiliation is a common topic when election season rolls in, but it can cause a hostile work environment when debates turn nasty. He says hosting a training, or informal talk, about treating co-workers with respect before election season will ideally prevent any issues. But sometimes HR has no choice but to get involved.

“When a problem arises, having a one-on-one discussion with the offender on civility is the best solution,” Reidy said. “It’s also helpful to having a group discussion on civility in the workplace, where you remind people of the polarization that comes with politics.”

From his experience at the labor law firm, Reidy said people are often surprised employers can take disciplinary action over what they post on their personal social media pages.

“Social media posts are a cobranding issue because the person posting likely identified themselves on the platform as member of the company,” Reidy said. “As employers, we have a right to ask employees to take down offensive materials.”

However, the National Labor Relations Act of 1935 protects employees’ rights to talk about working conditions. Reidy said the law was expanded to include social media; employers can’t take disciplinary action in these cases.

“If someone posts on Facebook, ‘I can’t believe we have to work overtime in this heat without a fan in the shop,’ that’s their right,” Reidy said. “Even if they use profanity.”

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