“Say It and You’re Fired!”

Can employers punish employees' speech? 

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It’s Friday morning, and an employee comes to you. One of the supervisors in another department has been annoying her with his “racist speech.” You ask what she means, and she tells you that he constantly criticizes people who don’t speak English, insults the migrants who are applying for asylum at the border, and sometimes rages and throws things when he’s unhappy. She also reports that he has threatened to “shove [his] foot up [her] ass.” Mindful of your obligation to provide a workplace free of harassment and a safe workplace, you thank the employee for her report and start your investigation. Other employees report that the supervisor is a Trump supporter and has made statements in support of Second Amendment rights, shared radical websites with employees, criticized gay people, and advocated returning all Mexicans to Mexico. They report that they have asked him not to share his political views, but nevertheless, he has persisted. Others confirm that he has thrown objects and verbally attacked employees. What do you do?

First, you need to evaluate the content of the speech. Unlike the U.S. Constitution’s First Amendment, which provides that “Congress shall make no law … abridging the freedom of speech,” but does not prevent private entities like employers from making rules abridging freedom of speech, the California Constitution’s broader protection for freedom of expression has been held to limit even private entities from bans on certain speech. Moreover, California statutes, such as Labor Code section 1101 prohibit employers from making rules or policies that (a) forbid or prevent employees from engaging or participating in politics or from becoming candidates for public office, or (b) control or direct, or tend to control or direct the political activities or affiliations of employees. Section 1102 bans any coercion or attempt to coerce an employee through threat of termination to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity. So, to the extent the people complaining about the supervisor’s statements are unhappy with his political point of view, you must tread lightly in disciplining an employee for holding or expressing political opinion.

Second, you still must weigh the impact of the supervisor’s comments on others. If employees have asked the supervisor not to discuss politics, but he has insisted, he is interfering with their work performance by distracting and/or annoying them. He also may be unlawfully harassing them by creating a hostile working environment if, for example, he selects gay employees to hear his anti-gay commentary or Mexican-American employees to hear his comments that they should be deported, and these comments have unreasonably interfered with their work performance and/or created an intimidating, hostile, or otherwise offensive working environment.

Third, you have the right to run your workplace. If the supervisor is spending his time on political websites, chatting online or talking to employees about politics and your business has nothing to do with politics, he is shirking his own work obligations. Simply because an employee has the right to express political points of view does not obligate you to pay him to do anything other than his job.

Finally, abusive conduct need never be tolerated. If the supervisor is not only stating unpopular opinions (protected), but also yelling at employees, threatening violence, throwing things, spouting profanity in the workplace, and generally making everyone miserable, look to your policy manual. If it doesn’t already include a code of conduct and/or a policy of treating all others with respect, it needs one. Follow your policies, and they will likely lead you to the right result.

When in doubt, it is always good to consult employment counsel. Even where the solution to a problem seems obvious, there could be hidden danger.