Ask The Lawyer – Free Speech?
QUESTION: A guy I work with is a big supporter of Donald Trump. He talks about his political views, in a loud voice, in the common lunch room – blaming immigrants for a lot of the crime in America, saying special rules should apply to Muslims because they are terrorists, and bashing Hillary Clinton by calling her a liar and a lesbian. He also leaves articles and flyers on a table in the lunch room that reflect these views and others. I find his talk, and the generally false and inaccurate articles and flyers really. He says it’s a free country, and he can say what he likes in the lunch room, because he’s on his own time. Listening to him makes me sick to my stomach. Is there anything I can do about this?
ANSWER: The First Amendment protects individuals from government restrictions on free speech. In a work environment, in the private sector, employers have more power to impose reasonable restrictions on speech during work hours – and mouthing off in the lunch room falls into the category of speech that may be regulated.
Although your co-worker is making these comments on his personal time (lunch), the fact he’s on his own time does not mean your employer should allow his conduct, which may be in violation of company policy and could potentially expose your employer to a claim of discrimination. Your co-worker is still technically at work in that the break room and facilities belong to his employer.
Employers are also allowed to limit the kinds of materials that workers display on bulletin boards (and lunch tables) as long as restrictions do not implicate rights that relate to employment issues (wages and hours) which may be covered under Section 7 of the National Labor Relations Act. Do the flyers specifically relate to wages and hours and conditions of employment? If not, they are probably not protected. If the flyers etc. denigrate minorities, a specific religion, women, older people, or women your employer could be in trouble for allowing a hostile work environment to exist.
Race, age, gender and disability are protected classes – and an employer who allows comments that disparage others on the basis of race, class, gender, or disability (especially where they are offensive to others) is just asking for trouble. In Lansing, political affiliation is a protected class, so comments that disparage others for their membership in one party or another, Democrat or Republican, may be restricted.
Many companies do have written policies that bar discriminatory remarks. Your co-worker’s comments about Muslims and immigrants may violate the company’s guidelines. Check your employee handbook to see if there are any rules regarding such speech in the workplace.
Your employer also has an interest in the efficient conduct of the business: political speech that tends to disrupt of the workplace may be regulated. If the comments and printed materials impact your ability to do your job, they should be banned. And, an employer may regulate an employee’s speech that offends co-workers, especially if the employee has already been informed the speech is offensive. If you have not already spoken to a supervisor about the issue, you should do so – in confidence.
Although employers can ask people to keep their political views to themselves, within reason, they must be careful that any policies are even-handed (they can’t ban Mr. Trump’s supporters from airing their views while allowing unfettered speech to Mrs. Clinton’s supporters) and are consistent with past practice. And, they must make sure that restrictions on political speech do not impinge on NLRB rights or religious rights. It is often helpful for employers to ask their workers to sign a written acknowledgment of expectations, to avoid later allegations that the expectations were impermissible and discriminatory.
When trying to decide how to address the issue of political discussions and activity, you may wish to consult legal counsel. The lawyers at GWINN TAURIAINEN PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinntauriainenlaw.com.
ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
GWINN TAURIAINEN PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3310 facsimile