4 Kinds of Protected Speech in the Workplace
February 25, 2021
In today’s politically charged climate, political speech in the workplace is at the forefront. “We’re going to be living with a lot of strong opinions for a long time, and these opinions are strongly held by employees,” Labor & Employment attorney Fran Haas says. “People are speaking up and taking positions in a way they weren’t even a year ago.” Beyond politics, political speech also encompasses speech about sincerely held social justice issues.
“It’s a common misconception by employees in the private workforce that there are any rights to free speech in the workplace,” Haas says. “There really aren’t.” With a few notable exceptions, employers have a right and prerogative to manage political speech. But the exceptions matter. Here are four kinds of protected employee political speech.
Public Employer Protections
Unlike a private workforce, some constitutional free speech rights apply to public employees.
National Labor Relations Act Protections
“Sometimes employers are surprised to learn that, even though they don’t have a unionized workforce, there are speech protections that apply under the National Labor Relations Act,” Haas says. Generally speaking, those speech protections apply to non-management, non-supervisory employees.
The protection applies to speech that’s considered concerted activity for “mutual aid or protection.” It also must have a direct nexus to employee working conditions. “You have to be doing this not just on your own behalf but also on behalf of your fellow employees,” Haas says. The content also must be specific to the job conditions.
In one frequently cited example, Kaiser Engineers v. National Labor Relations Board, an employee wrote a letter to Congress on behalf of himself and other employees. The letter opposed a competitor’s efforts to obtain resident visas for foreign engineers. The concern was that foreign engineers would threaten U.S. engineers’ job security. The company that employed the writers tried to take disciplinary action. They felt the communication was inappropriate and inconsistent with company values. The court deemed the communication to be protected speech. The employees were communicating about job security for mutual aid and protection.
In highly regulated industries, employees who write to regulatory bodies seeking feedback or taking a position on licensure or recognition-type issues are typically considered to be using protected speech rights.
What isn’t protected by the National Labor Relations Act:
- Communications about matters other than working conditions.
- Communications during work time, in general.
- Purely political communications.
“Taking a position in favor of a political position or political candidate without any reference to employment issues would not be considered protected speech,” Haas says.
Speech protections under the National Labor Relations Act are quite specific. Haas has one suggestion. “If you aren’t sure whether the National Labor Relations Act would apply, check with HR or your attorney. Make sure you aren’t going to do something that’s inconsistent with the National Labor Relations Act,” she says.
Whistleblower speech is one of the few instances of protected speech in the private workplace.
Statutory whistleblower protections are largely industry-specific. For example, the Sarbanes-Oxley Act protects employees of publicly-traded companies who report securities violations. The Health Insurance Portability and Accountability Act (HIPAA) includes whistleblower protections for the health care industry.
“In Iowa, we have a tortious discharge cause of action,” Haas says. “You can’t fire an employee who reports a workplace safety concern to OSHA. You can’t fire someone for engaging in that type of speech or trying to exercise their rights under the Iowa Workers Compensation Act.
A variety of federal and state laws protect an employee’s right to lodge internal or external complaints about discrimination, harassment, or retaliation. Those include:
- Title VII of the Civil Rights Act
- Age Discrimination in Employment Act (ADEA)
- Americans with Disabilities Act (ADA)
- Iowa Civil Rights Act
“Employees who lodge internal complaints about discrimination or harassment, can’t experience retaliation because of it,” Haas says. “That is a form of protected speech.”
Beyond those areas, private employers can regulate how employees engage in at-work and off-duty speech and conduct. The main concern for employers? Determining fair treatment that aligns with company values and policies.
Your Nyemaster Labor & Employment attorney can assist with questions about protected speech in the workplace and company policies to manage political speech.