Monday, August 14, 2017

From Google to Top Dog hot dogs via Charlottesville: What About Employee Free Speech?

It’s been an “interesting” week. First, a Googler was fired for his infamous memo on the alleged biological roots of gender inequality. And now Top Dog, a California hot dog chain, has fired a cook because he was identified on social media as a participant in the white supremacist demonstration in Charlottesville. These firings are probably legal in the United States because of employment-at-will, but should they be?

Most workers in the United States are at-will employees. As explained by a Tennessee court way back in 1884, this means that employers “may dismiss their employees at will, be they many or few, for good cause, for no cause or even for cause morally wrong, without being thereby guilty of legal wrong.” Employment-at-will is not unlimited. Workers covered by union contracts or similar civil service rules are likely shielded from the vagaries of at-will employment by policies that require a just or good cause for being disciplined or terminated. And there are legal exceptions, such as nondiscrimination protections (you can’t be fired because of your gender or race, for example), and some very specific judicial exceptions. But these exceptions are much narrower than most people believe. Most workers can’t be fired for a reason that violates a specific nondiscrimination law, but otherwise employers generally do not need a good reason to fire someone. So even if the cook has been misidentified, he can still be fired because Top Dog doesn’t need a good reason for firing someone.

But what about the First Amendment protection of freedom of speech and expression? Doesn’t this protect the Google engineer and the hot dog cook? No. The First Amendment protects freedom of expression by restricting governmental limitations on freedom of speech; it does not prohibit private organizations like Google and Top Dog from limiting speech and expression. Contrary to popular beliefs, U.S. workers generally do not enjoy the right to free speech and expression. So the firings of the Google engineer and the hot dog cook were likely legal.

But should they be? In our book Invisible Hands, Invisible Objectives: Bringing Workplace Law and Public Policy Into Focus, Steve Befort and I advocate for broad freedom of speech protections for employees. The effectiveness of the political process as well as respect for human dignity require that employees be able to exchange ideas, complain, attend meetings and demonstrations, and blog or tweet about issues of either public or private concern. With that said, a difficulty with any free speech protection is how to accommodate views that are unpleasant and contrary to our own. These difficulties will never disappear, but currently they are solved in the work arena by giving employers all the power. I think it would be better to have some protections. 

And yet, the events of the past week dramatically highlight that these protections should not be unlimited. Rather, there should be statutory protections for employee free speech in which private and public employers are not allowed to violate an employee's freedom of expression either in or out of the workplace absent a legitimate business justification for a specific limitation. If a worker who has been disciplined or discharged can make a case that this stemmed from expressive activity (which isn’t in doubt for the two workers here), then the employer must demonstrate a "substantial and legitimate business reason" for the action to be legally acceptable.

What would this mean for the Google engineer and the hot dog cook? Would their reprehensible actions be protected? Probably not. Behavior that harms the employer’s reputation as well as behavior that causes other employees to be unable to work with him or her are generally seen as giving the employer a legitimate business reason to discipline or fire a worker even when that worker is protected by a just cause contractual provision (as in the United States) or wrongful discharge statute (as in Canada). So firing the Googler and the cook would likely be legal. We do not have to concede all employee rights to freedom of expression in order to denounce the behaviors of the past week. 

Admittedly, there might be other circumstances which might make us uncomfortable. Would firing a worker who attended a Black Lives Matter rally be acceptable because racist co-workers refused to work with this individual? Or would it be illegal to fire someone charged with sexual assault outside of the workplace if that worker doesn't work with anyone else (see the Ontario case of Merritt v. Tigercat Industries)? There are no easy answers here, or in many other areas of legal standards. But I submit that some standards are better than none. 

So the Google engineer, the hot dog cook, and many other U.S. workers should have greater speech and expression protections than is currently the case. But these protections shouldn’t be unlimited. Granted, this isn’t as efficient as giving employers unilateral authority.  As with many other aspects of the employment relationship, we need to find a balance between complex, competing interests. 

1 comment:

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