It’s rare to encounter an organization in which the free-speech rights of employees are actually championed. More common is the office where employees at all times keep their opinions and suggestions to themselves, where bottom-up feedback comes in dribs and drabs, or not at all, where creativity and innovation get squashed by the chest-thumping index finger of an employer who can terminate "at will." You may think you’re managing an "open" culture—what with your town meetings and rap sessions and offsite workshops—but have you really taken a hard look at the poker-faced silence of your own workforce?
There exists a growing number of workers who believe they’re not being listened to, says David C. Yamada, associate professor of law at Suffolk University Law School in Boston, Massachusetts. "Isn’t it ironic that while management often waxes enthusiastic about the principles of employee participation, they fall well short of suggesting that the best way to encourage this participation would be to afford each worker a right of expression?"
Unless the contract states otherwise, most private employers can impose pretty much any rules they want on speech, subject to statutory or common-law exceptions. And normally they can fire anyone, anytime for good reason, bad reason, or no reason at all, says Cynthia L. Estlund, visiting professor of law at New York City-based Columbia Law School. The First Amendment to the U.S. Constitution, it seems, applies only to government and/or public agencies—not to private employers.
Consider Drake vs. Cheyenne Newspapers Inc. The Wyoming Supreme Court noted in 1995 that the right to free speech is not absolute, and that terminating an "at-will employee for exercising this right to free speech by refusing to follow a legal directive of an employer on the employer’s premises during working hours does not violate public policy."
Make no mistake, companies now present a threat to individual freedom comparable to that which would be posed if government power were left unchecked, says Suffolk’s Yamada. "Rather than being urged to offer suggestions to employers on how to become more productive," he says, "workers are learning how to avoid being laid off by remaining silent. Instead of being encouraged to question management’s decisions when appropriate, employees are being taught to curry favor. Is this the type of workforce we want?"
Also emerging is the malignant practice in some private companies of implementing broad-based, zero-tolerance polices that do more than just politely hand-slap employees who tiptoe across the lines, says Eugene Volokh, professor of law at UCLA Law School in Los Angeles. "A number of employers are imposing speech restrictions on employees simply because they’re being pressured by government into believing that sexual jokes, for example, may be a violation of a person’s rights. The government has no business imposing speech codes on private property."
Is speaking one’s mind a bad career move?
It’s undeniable that waves of well-publicized terminations have convinced some employees that speaking one’s mind can be a bad career move. In 1991, the Massachusetts Supreme Judicial Court held in Korb vs. Raytheon Corp. that the state’s free-speech clause did not protect from discharge a corporate spokesperson who spoke out against his company’s economic interests. The plaintiff was terminated after he made remarks during a press conference in which he criticized increased defense spending and urged that plans to expand the U.S. Navy be scaled back.
In Mountainair, New Mexico, an energy conservation advisor for a utility company was terminated after he won the local mayor’s race. The New Mexico Supreme Court held in 1993 in Shovelin vs. Central New Mexico Electrical Cooperative that the state’s free-speech clause did not create a broad right of political expression for a private employee.
As Suffolk’s Yamada points out, just a few decades ago, workers who wanted to bitch about a boss or fight an unfair disciplinary action could go through their union representatives. Not so much any more. These days, the vast majority of American private-sector workers are not protected under the National Labor Relations Act, and thus, "do not have the right to express their priorities and concerns through collective bargaining, because the lines of communication inherent in any union-management relationship have been severed."
Furthermore, according to a recent survey by the American Management Association, nearly two-thirds of employers monitor employee voice-mail, e-mail, phone calls and computer files. And the surveillance measures don’t stop there. Some companies have even installed computer programs that monitor which Internet sites employees visit, and how long they stay there. This specter of electronic surveillance alone can severely chill employee free speech, says Yamada. "Any employee who knows that e-mail is being monitored or that phone calls are being recorded is likely to engage in a fair amount of self-censorship."
Just two years ago, chairman Alan Greenspan of the Federal Reserve Board testified before Congress that workers are so worried about their own job security that they accept smaller pay raises for fear of losing their jobs—even when the labor market is tight. Greenspan’s findings are consistent with the results of a 1995 public opinion survey by The New York Times that found high levels of economic insecurity among American workers. Only 13 percent of respondents reported feeling "very secure" about their economic prospects, while 72 percent believed that layoffs and job losses in America are permanent, as opposed to temporary. More alarming is that almost 50 percent of total respondents said they would "challenge the boss less often than in the past if it meant increasing their chances of keeping their jobs." A 1994 poll by Princeton Survey Research Associates found that one in six employees have withheld a suggestion about improving work efficiency because they worried it may cost someone a job.
So where are the champions of free speech?
It’s possible that companies which encourage a free, reasonable exchange of ideas may actually create a more productive, participatory workforce, says Haydn Shaw, facilitator of the "Four Roles of Leadership" seminar for the Salt Lake City, Utah-based Franklin Covey, a leadership and time-management consulting company. "Open-door policies can be the best source of new ideas and new potential for an organization," he says. "And unless there’s freedom of speech, there are missed opportunities. Ultimately, a company that figures out how to create openness and direct that toward better service will shape its own future."
People need to connect meaning to their work, and that means they need to bring their humanness to the table, adds Shaw. The more a person is involved on a personal basis with his or her work, the less that person can be expected to escape work by creating controversy in the workplace. "And the more meaningfully connected they are to their company, the more their focus will be on the appropriate feedback to make a difference."
Keeping the lines of communication open also means the employer is more likely to be aware of employee grievances, more likely to be able to solicit ideas about how to improve the company’s products and services. When there’s a sense in the workplace that viewpoints aren’t welcomed, these grievances tend to bubble from within and employees spend a lot of time talking among themselves, cutting down on productivity and morale.
Lynn McClure, a Mesa, Arizona-based management consultant, encourages HR managers to listen to employees, treat them as business partners, and design policies and training programs that reinforce appropriate speech in the workplace. "There’s always the fear that if we cross the people in charge, we’ll hang ourselves," she says. "This kind of inhibition decreases employee commitment to the company. Managers, especially, need to learn how to accept criticism because it takes so little to discourage an employee from contributing."
Obviously, there are reasonable restrictions on an employee’s freedom of speech. A receptionist shouldn’t shout profanities at customers, for instance. But it’s hard to see how wearing a "Save-the-Whales" T-shirt could interfere with repairing your company’s computers or how a union poster would slow an assembly line. Maybe it’s time to allow private-sector employees a greater degree of freedom without compromising the legitimate needs of the employers. "The alternative," says Yamada, "may well be a workplace that harbors cynicism and anger, destroys morale and consequently results in a less productive workplace."
Workforce, September 1999, Vol. 78, No. 9, pp. 38-39.