‘Free Speech’ Can Be Costly in the Workplace

By Max Mihelich

Jun. 3, 2014

In late March, many employees of the Silicon Valley-based tech company Mozilla Corp. took to social media to criticize or defend their then-CEO Brendan Eich after it was reported he donated $1,000 in 2008 to an organization that supported California’s controversial Proposition 8 ballot initiative to ban same-sex marriage.

Eich was named Mozilla’s CEO on March 24, according to a Mozilla news release. The next day blog posts and other media stories about Eich’s political contributions began circulating online, sparking a social media backlash from Mozilla employees. Amid the intense public scrutiny, Eich voluntarily resigned his position April 3.

The Mozilla controversy brought the topic of free speech rights in the workplace to the forefront of the public forum. Strong arguments can be made in support or against Eich’s decision to voluntarily resign as Mozilla’s CEO. Though, when it comes to working for a private corporation, employees oftentimes falsely believe their First Amendment right to free speech fully applies at work.

The First Amendment of the Constitution guarantees every U.S. citizen the right to free speech protected from punishment by the government. In most cases of private employment, however, political speech is not a protected right.

The First Amendment of the Constitution guarantees every U.S. citizen the right to free speech protected from punishment by the government. In most cases of private employment, however, political speech is not a protected right.

An employer is able to separate itself from any employee viewed to be tarnishing the image it tries to present to the public, legal experts explained.

“In general, the First Amendment does not restrict a private employer’s ability to punish political speech in most states,” said Brian Wassom, a partner at law firm Honigman Miller Schwartz and Cohn in Bloomfield Hills, Michigan. “In most states, employment is at-will. If an employer finds an employee’s speech to run counter to the company’s values and image, there’s nothing preventing them from terminating that employee.”

While Eich voluntarily left Mozilla, his support of Proposition 8 could have been interpreted as an activity that did not align with the company’s commitment to openness and diversity – as many of Mozilla’s employees did.

Employee Activism

The social media response of Mozilla employees to Eich’s appointment is part of a growing trend of employee activism. According to a study published in April by global public relations firm Weber Shandwick, “employee activists draw visibility to their workplace, defend their employers from criticism and act as advocates, both online and off.”  

One in five employees can be considered an employee activist, the study found. Additionally, 33 percent of employees have high potential to become employee activists as well. The study also suggests employers should embrace employee activism and encourage more brand socialization. Brand socialization improves organizational transparency and could lead to an increase in engagement. For example, the research shows employees whose employers encourage social activism are significantly more likely to help boost sales than employees whose employers do not (72 percent vs. 48 percent, respectively).

“The employee activist movement should not be underestimated,” said Micho Spring, Weber Shandwick’s global corporate practice chair, in a written statement. “Identifying and activating employees willing to rise to levels of extraordinary support for their organizations should certainly be an important priority for CEOs.”

Although the study shows social media holds potential benefits for employers, there are risks involved as well, explained legal experts. Many employment lawsuits involving social media deal with issues regarding the National Labor Relations Act.

The act “protects line employees from adverse actions from employers based on statements concerning the terms and conditions of employment that are for the mutual aid and benefits of co-workers,” said Philip Gordon, chair of the privacy and data protection group at law firm Littler Mendelson in Denver.

There are two components that protect employee speech under the NLRA, Gordon explained. The first is that the speech must be concerning terms and conditions of employment, but those terms are broadly defined. For example, discipline or management performance could fall under terms and conditions of employment.

Secondly, the speech must be “concerted,” meaning speech concerning a workplace condition or term of employment that a group of co-workers would like to see changed. An employee could write a post on Facebook that criticized a management policy and thanked co-workers for getting together to discuss it.

To avoid a lawsuit, employers should understand laws like the NLRA and how it applies to social media. Likewise, employees need to realize their employer’s social media policy lest they lose a job over a careless tweet or Facebook post.

“Still, to this day, it’s surprising how few employees really appreciate the power of what they share online,” Wassom said. “The sorts of things we don’t punish in a water-cooler conversation may end up being posted online for the entire world to see. Employers need to really drive home the idea that employees need to think twice about what they post and why it can be more consequential online rather than whispered in a conversation around the water cooler.”

Max Mihelich is a writer in the Chicago area.

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