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Censored! 'Free' Speech at Work

September 1, 1999
Related Topics: Miscellaneous Legal Issues, Labor Relations, Featured Article
Modern management theory about the ideal work environment seems to revolve around employee participation and cooperation. But creating a so-called "open" culture can be a nightmare, what with government pressure to impose speech restrictions, and employees hewing to the longstanding, deluded presumption that a constitutional right of free speech exists in the workplace.

It s an awfully heavy load to hoist when you re trying to run a business. Where do you set the bar when you re trying to respect and encourage the free exchange of ideas among employees, and swim delicately among the icebergs of statutory or common-law exceptions? And what about the potentially inflammatory—true believers who proselytize their religious beliefs to co-workers, cultural outcasts who inflict their loud, violence-mongering music on everyone within earshot, and corporate resisters who covertly bad-mouth management in Internet chat rooms?

"It might be okay if an employee comes to work wearing a Bob Dole T-shirt," says Bruce Barry, associate professor of management at Vanderbilt University in Nashville, Tennessee. "But what if he comes to work wearing an abortion-is-murder T-shirt? It s easy for employers to say they have a culture of individual rights and free expression, but it s tough to set corporate policy around the gray areas."

Take the issue of Internet chat rooms. Some companies have become more aggressive about suing disgruntled employees who post messages anonymously or who reveal proprietary information. Certainly, employees are entitled to air their grievances. But such online whining sessions can leave employers grappling with how to react appropriately without stifling free speech.

What is protected speech?
Any HR manager at a private company who has even once counseled an employee victimized by a racial epithet or a sexual innuendo knows how so-called free speech can cause real harm, even disrupt an entire workforce. Such "speech" can also leave your company vulnerable to a lawsuit. The U.S. Supreme Court, for example, has made it clear that speech protected on a street corner may not be protected in the workplace. Equal Employment Opportunity Commission guidelines state that an employer may be held liable for the sexually harassing acts of its non-supervisory employees, if the employer knew, or should have known, of the harassing conduct.

And the California Supreme Court ruled last month that judges do not violate First Amendment rights by prohibiting, in advance, the use of racial slurs on the job. The case stems from a 1993 lawsuit in which 17 Latino employees of Avis Rent-a-Car sued the company and its managers for creating an abusive work environment at its San Francisco International Airport outlet.

Recently, at the Los Angeles-based real estate advisory firm of Charles Lesser & Co., several of the company s roughly 30 employees were recently overheard in the lunchroom complaining about verbal harassment from one particular manager. "Lines were definitely being crossed, and it was up to me to protect both the company and our employees," says Beverly Kelly, the company s human resources manager. For Kelly, it meant determining if a "hostile work environment" existed, then developing a management response.

"I went ahead and told the employees to document their grievances in writing, so management could take a course of action," says Kelly. "The next day, a formal written reprimand went into the manager s personnel file, and he was ordered to attend management training courses. Everyone s still working together, and trying to move forward."

If you ve been a human resources professional for any length of time, you doubtless already know that only a few forms of workplace speech—logging a complaint of discrimination or harassment, whistle-blowing, union organizing—are truly protected in the private sector. Otherwise, an "at-will" employment relationship can be ended at any time by either the employer or the employee, and for any reason or for no reason at all—subject, of course, to statutory and common-law exceptions or a formal employment contract.

Section 7 of the National Labor Relations Act and the "whistle-blower" provisions of various employment and other protective measures loosely offer speech protection for employees of private companies. The NLRA grants workers the right to engage in "concerted activities" for the purpose of mutual aid or protection. It provides them with a relatively safe means of raising concerns and complaints through their union officials, and it allows them the right to engage in collective bargaining, strikes, boycotts and picketing.

So-called free speech can cause real harm, even disrupt an entire workforce. Such "speech" can also leave your company vulnerable to a lawsuit.

Under so-called "whistle-blower" protections, a growing number of statutes prohibit reprisals against employees who log sexual harassment complaints, who refuse to disobey a law when asked to, who report illegal or harmful activity, or who testify or assist in an investigation.

Employers are prohibited from interfering with the exercise of these rights.

"Obviously, most employers would rather handle these kinds of issues in-house, but that s not always possible when the employee wants to file a formal complaint with a government agency," says David C. Yamada, associate professor of law at Suffolk University Law School in Boston, Massachusetts. "Generally, external reports of illegalities to enforcement agencies are protected while internal reports of the same activity to company supervisors are less likely to be protected."

Employers can shield themselves from liability and damage by devising a mechanism to investigate complaints, says labor attorney Wayne Hersh of Irvine, California. On free speech issues, consistency also is important, he says—if employees are allowed to hang Girl Scouts posters on their walls, then they must also be permitted to pin up handbills for, say, the International Brotherhood of Electrical Workers.

"Just make sure you don t have a written policy that denies free speech, because then you start running into prior restraint, which is tricky business," says Hersh. He also advises managers to avoid written polices that could be construed to mean employees enjoy unmitigated free-speech rights. Courts in many states, it seems, have held that assurances outlined in employee handbooks can be enforceable as contracts. "Some companies have even gone so far as to revise their handbooks so they don t get into trouble with so-called contractual issues," he says.

Not that these realities mean much in Corporate America. For there remains a tremendous amount of litigation in this country pitting the supposed rights of individuals against the perceived rights of employers. "Unfortunately, there s no matrix here," says Marelene Heyser, director of human resources and risk management for the Orange County Transportation Authority (OCTA) in California. "You want to build an atmosphere where employees can discuss their differences with supervisors and exchange ideas with co-workers, but you can t allow speech that would violate a state or federal statute."

It s estimated that roughly 10,000 employees per year are ordered reinstated after it s found they were discharged for engaging in "protected activity" (union organizing, whistle-blowing, etc.). "Just the act of asserting one s rights, even if wrong, might be protected," advises attorney Peter Susser, author of Employment Law and Practice Handbook (Sheshunoff Information Services, 1998).

In many areas, the laws on workplace speech are either fluid or require fine distinctions. For instance, says New York City-based labor attorney Steven Mitchell Sack, author of Getting Fired (Warner Books, 1999), an airline flight attendant was fired recently for chatting with passengers about her religious beliefs. "Human resources managers should know they shouldn t discriminate against an employee because of her religious beliefs, but they may be able to fire an employee for talking about her religious beliefs to co-workers and customers, especially if it s interfering with work."

Of course, with freedom comes responsibility. And here s where it gets murky for HR managers. For with every employee who comes to the job with the desire to communicate openly, honestly and respectfully, someone else arrives likely to hurl insults, racial slurs, and sexual innuendos—speech that ultimately undermines employee morale and company productivity.

Employers set the bar.
Employers do not by sinister design tend to create a culture of fear and intimidation. And few managers would argue that everyone needs a little "breathing room," especially in these days when the office has become a place for defining and reflecting self-identity. Yet it s also undeniable that too much employee freedom can be disruptive, even harmful.

Stacy Griggs is senior recruitment manager for Philadelphia-based System One, a technology consulting firm of roughly 300 employees and 1,700 consultants. "A lot of employees don t know if something s inappropriate unless you tell them," he says. "For example, on an annual basis we go through sexual harassment issues—why it s wrong, what you should and shouldn t say—just so we know the staff s getting the message. I can guarantee you a lot of HR practitioners lose sleep over these questions."

Behind every "open" culture is the assumption that employees and managers alike will always be reasonable. Yet from an HR perspective, it s not that simple. It s more about actively trying to understand how free expression plays into your corporate culture, and then making sure everyone understands the ground rules. "Companies need to temper openness with a strong dose of reality," says Jim Weintraub, management professor at Babson College in Wellesley, Massachusetts. "They need to make sure employees understand there s a different set of guidelines and standards in corporate life. At the same time, companies should encourage employees to share ideas. And there needs to be a reward system for exhibiting those behaviors that articulate the corporate culture. It s the follow-up that symbolizes to people what really happens with respect to open communication."

Few managers would argue that everyone needs a little "breathing room." Yet it s also undeniable that too much employee freedom can be disruptive, even harmful.

At Irvine, California-based Freedom Communications Inc., a national media conglomerate of 7,500 employees, management strives for a "minimal amount of control and a maximum amount of freedom," says Mark Ernst, the company s vice president of human resources. "You set the bar at a certain level, the minimal level of acceptable behavior. If you make racial or sexual innuendos, you ve crossed the bar. If you ve just been jabbering all day, you re below the bar but let s get back to being productive."

Ronna Lichtenberg, a business and relationship counselor and author of Work Would Be Great if It Weren t for the People (Hyperion, 1998), suggests HR managers work with senior executives to display the sort of behavior expected of company employees. "Senior executives often just flat get away with more in terms of what they can say and do. You should never let anybody get too far away from the bell curve," she says.

And consider designing policies and training programs for employees and managers as a way to reinforce appropriate behaviors and speech. At the Hoffman Estates, Illinois-based Sears, Roebuck and Co., for example, all 300,000 associates receive a company-sponsored "Freedoms and Obligations" brochure that outlines the company s codes of business conduct and leadership principles, and sets the tone for what is or isn t appropriate expression in the workplace. The brochure itself is first-class all the way—heavy and stately and beautifully laid out with a table of contents as seemingly comprehensive as any brochure any company would ever want. And even though it s the finest money can buy, the company also offers its employees a 1-800 ethics hotline and an electronic suggestions system. "Our company policy is to encourage associate expression," says John Sloan, the company s senior vice president of human resources. "It s a fundamental principle tied directly to the vision of our company. We ve found that morale improves when associates get the chance to voice their opinions about the company and their jobs. Otherwise, we handle everything else on a case-by-case basis. These things emanate from our corporate culture. And it starts at the highest levels of the company from the chairman on down."

One reason new employees with great qualifications often fade so quickly is because no one has shared with them how to play the game, how to communicate within the given culture. At San Francisco-based AirTouch Communications, employees are drilled from day one about the company s values on ethics, integrity, customer satisfaction, leadership, teamwork, innovation and the ability to think and act like owners. These values are then linked to the performance appraisal process.

"It s not what we do, but how we do it," says Maria Powers, the company s director of organization development and training. "Employees are rated on whether they adhere to the corporate values. We also ask for feedback during their performance appraisals from key internal customers—peers, people from other departments. Clearly an issue like free speech can bump up against, say, sexual harassment. And if there s an issue, we settle it by going back to our core values, starting with respect for people. If you can t do that, then maybe you shouldn t be here."

Workforce, September 1999, Vol. 78, No. 9, pp. 34-37.

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