Is Free Speech Protected in the Workplace?

COVID-19 fears, increased remote work, government protests, civil rights rallies and marches have created a heightened stress level for many. As employers, how do we navigate these matters while following applicable laws and regulations? Read on for some great questions and answers facing today's workplace.

IS FREE SPEECH PROTECTED IN THE WORKPLACE?

First Amendment rights to free speech do not apply in private workplaces. However, employees in California do have the right to talk about possible unlawful conduct in the workplace. Employees may also complain about harassment, discrimination, workplace safety violations, and other issues. Employees do not have the freedom or right to express racist, sexist, or other discriminatory comments in the workplace.

SHOULD WE ALLOW EMPLOYEES WHO PARTICIPATE IN PROTESTS TO RETURN TO WORK AMID COVID-19 CONCERNS?

What is your policy right now when an employee takes a week of vacation and tells you that they are going to a family reunion in Las Vegas? Asking an employee about lawful off-duty conduct and/or denying work due to such conduct could be very problematic. Refer to your Site Safety Plan and follow other current internal practices regarding COVID-19 infection in the workplace regardless of the employee's participation in small or large protests. Consider a general policy for addressing off-duty conduct in relation to COVID-19 unrelated to the actual activity. Example: If employees engage in activity that involves a lack of social distancing or groups of people in excess of what local guidelines allow, we will ask them to stay home for a specified period based on current CDC guidelines. Another idea is to allow employees to take paid time off or work remotely after engaging in any activities or vacations where social distancing isn't observed.

CAN I FIRE AN EMPLOYEE IF THEY WERE ARRESTED AT A PROTEST?

There are two things to consider in answering this question:

1. If an employee's arrest causes them to be absent from work, your attendance policy will apply, regardless of the reason for the arrest. Your decision on discipline may depend on how much time your employee actually misses from work. Review your attendance policy and apply it consistently.
2. In California, terminating an employee for lawful off-duty is a violation of state law. However, if an employee engages in unlawful conduct off-duty, an employer will need to investigate to determine if the conduct impacts the employee's ability to perform his or her job. This is a complex area so it is best to seek professional counsel before taking action against an employee for off-duty conduct.

DO I HAVE TO ALLOW AN EMPLOYEE TO TAKE TIME OFF TO ATTEND A PROTEST?

No, neither state nor federal law requires employers to provide time off to employees who wish to attend a protest. Follow your policies and procedures for time off requests to protest the same as you would for any other time off request. Do you normally require advanced notice? Do you sometimes deny a request for time off if it will negatively impact your operations? If so, the same would apply in these circumstances.

CAN I DISCIPLINE AN EMPLOYEE WHO CALLS IN SICK, BUT INSTEAD GOES TO A MARCH?

Employers may discipline any employee who violates internal attendance or leave policies when done so consistently. For example, if an employer would discipline an employee who called in sick, but was actually out fishing that day, they should follow the same procedures if an employee called in sick and was later found to be at a march, protest, or rally instead.

CAN MY EMPLOYEES BRING PROTEST MATERIALS INTO THE WORKPLACE?

California law has broad protections on political speech. However, political materials in the workplace can be governed by employer policy. Signage, clothing, and other items that individuals may use to communicate a protest message may be prohibited from the workplace. Review your policies (dress codes, office décor, and employee conduct) to ensure the policy language addresses such materials and does so consistently. Many employers seek counsel if they wish to limit expression in the workplace to ensure all bases are covered.

Every situation is unique. If you have questions, call CEA at 800-399-5331 and ask for one of our HR Advisors to discuss your situation. You can also email us at ceainfo@employers.org.