Civility in the Workplace – HR’s Role

By Brendan M. Walsh

“The topic of political discussions in the workplace would actually be about freedom of speech in the workplace; the difference between government employees and private employees.”

It is an all too familiar occurrence for employers and managers to find themselves in scenarios where the topics of employee discussion are less-than-peaceful, or at the very least, far from universally agreed upon. These contentious topics include politics, faith, drama, the company itself, each other, etc. When these arise, they have various effects on work performance, employee morale, and the overall environment of the workplace. 

Those in positions of leadership, management, and human resources, often find themselves in a perplexing position, left to determine whether to attempt to subdue discussion that is not the biproduct of unanimity, or to allow the discussions to continue, to allow the free expression of their employees. This leaves employers with necessary questions about how to maintain civility – and productivity – in the workplace. When these questions arise, the First Amendment will undoubtedly come into play.

The First Amendment states as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peacefully to assemble, and to petition the Government for a redress of grievances.” 

The determination of whether employees’ speech is protected under the First Amendment depends on whether the employee is a private employee or a government employee. In fact, the First Amendment does not apply at all to the former category. The First Amendment operates only to protect individuals from their Federal Government, not from actions against them by the private sector. Nongovernmental employers are private actors for purposes of the First Amendment, so their employees are afforded no protections by the First Amendment regarding their speech. Those employees would have to look elsewhere for protection, such as those afforded under the National Labor Relations Act regarding terms and conditions of employment, etc. 

That is the extent of protection under the First Amendment for private employees – essentially, zero. This is due to the fact, again, that the First Amendment applies only to restrict the power of the government, not private actors. 

Governmental employers and employees face an entirely different set of expectations and standards. In that situation, limited protections are afforded to employees under the First Amendment. The United States Supreme Court in Pickering v. Board of Education opined that the law must be applied to “arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interests of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” 

At the most basic level, if an employee is speaking (1) as a private citizen (not in their professional role); (2) about a matter of public concern; and (3) the speech does not interfere with the job, or harm the company, the speech is generally protected. 

HR professionals should look closely at what the facts of the issue are. Is the employee speaking as an individual, or in the scope of their employment? For example, if the government employes a media representative for all their major announcements and events, and that employee chooses to make remarks that the employer does not agree with, there is no First Amendment protection afforded. Because the employee is operating within their scope of employment, instead of as a private citizen, the interests of the employer outweigh the rights of the employee in that situation. 

The next determination would be whether the speech is of “public concern.” If the speech is not of public concern – socially, politically, etc. – then it may not be protected. Under Connick v. Myers it was held that the issue of public concern must be balanced, and the “[employer’s] burden in justifying a particular discharge varies depending upon the nature of the employee’s expression” and its importance to the public. For HR professionals, this means that the content of the employee speech needs to be analyzed. Is the speech about something that is of public concern politically, socially, or otherwise? How much of a public concern is it at this time? The more the speech is related to public concern, the more protection it will be afforded.

Now, it should be noted that whether the employee intends to inform the public or attempts to do so is of no consequence. A comment made about an issue of public concern, regardless of whether the employee intends to inform the public, might still be protected when weighed against the interests of the employer. 

Finally, employers need to determine whether the speech disrupts or interferes with the ability of the employee to do their job, or the ability for the employer to engage in effective, productive, efficient business. The reason for this is that in any dispute regarding First Amendment protection for government employees, the interests of – and the burden on – the employer, will undoubtedly be an issue. So, if an employer decides to limit speech, or discipline or terminate for speech, and a suit ensues, the employer will want to show that it had legitimate interests in limiting the speech. For HR professionals, this means determining how much this speech is harming the company, if at all. If it is not damaging the reputation of the company, is not interfering with the productivity of the company, and is not causing serious issues among employees that impact their performance, then HR/employers should probably allow the speech. 

That being said, if the company is suffering damage to its reputation, a decrease in productivity, and/or disruption among employees, they would likely have a convincing argument for taking actions to limit speech. Each different scenario must be considered. 

Having considered all of this, HR professionals should first determine which category their employer/employees fall into, and always keep in mind the legitimate interests of the employer and employees. Managers must ask: is this a governmental place of business, with governmental employees, or is this the private sector, with private actors? If this is the private sector, then employees are afforded no protections under the First Amendment of the United States Constitution (but there may be employee morale or other considerations). On the contrary, if the employees are governmental employees, then the above factors must be considered. 

Assuming the employees are governmental employees, HR professionals and managers should begin analyzing the above factors. Who is making the statement? Are they speaking in their official capacity, or as a private citizen? What are they speaking about? Is it a matter of public concern? How big of a matter of public concern is it? Are they disrupting day-to-day activities? Are they causing turmoil among themselves and other employees? Is the reputation of the business suffering? Is the productivity of the business suffering? These are all questions that should be asked before action is taken to limit speech in the workplace or terminate/reprimand employees. Remember, employees that trust their employers, and feel free and safe at work, are usually better employees – but this does not mean that employers should allow an abuse of their good graces. 

So, I will leave you with this: If the employer is in the private sector, its employees have no First Amendment right to free speech, and employers can limit/restrict speech, or terminate, it as they see fit (notwithstanding other laws, again, such as NLRA or whistleblowing protection). Employers would benefit from addressing this issue in the employee handbook. Be careful to avoid the danger of breaking other laws and/or opening the company up to retaliatory discharge claims. If the employer is a governmental employer, however, then the employees have a slightly limited right to free speech, and the preceding issues should be considered and applied to the specific case at hand. 

Political and social topics of discussion will not cease to be a part of the workplace, and it would be naïve to assume that all employees will ever agree on every aspect of the volatile political world. Given this, HR professionals and managers should become familiar with the rights of the employees in their particular workplace in order to make informed, professional decisions when the time comes.