Can My Employee Say That?

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With the recent “Google memo” fiasco in the news, many employers are questioning whether Google was permitted to fire one of its engineers over an internal memo that criticized the company’s gender and racial diversity measures. The lengthy 3,000-word memo discusses the now-ex employee’s views on Google’s programs, hiring practices, and treatment of certain employees.

Business owners and employers need to understand how topics like this effect the workplace and under what lawful grounds an employee may be terminated. Americans afforded many liberties but those liberties are often misconstrued. The First Amendment of the Constitution affords liberties as to speech and expression, but that does not include the freedom to speak of anything, anywhere and
at any time. That is not the case, especially in the workplace. The First Amendment states: “Congress shall make no law…abridging the freedom of speech, or of the press…” The Amendment applies to Congress, which means the government may not make laws that interfere with our rights to protected free speech with some few exceptions.

The First Amendment does not typically apply to private sectors, including amongst non-government employers and employees. At first glance, it looks like an employer may terminate an employee for anything that they say or write while at work. Although the First Amendment does not protect the speech of the employee at work, there are anti-discriminatory laws that provide protection to employees’ right to certain types of expression and speech. One example is that an employer may not restrict an employee’s speech that expresses their religious beliefs.

The National Labor Relations Board is a federal agency that protects the rights of private sector employees. Section 7 of the National Labors Relations Acts (NLRA) creates exceptions to an employer’s right to restrict free speech and expression in the workplace. The NLRA gives employees the right to discuss wages, hours, work conditions, and organize unions. Section 8(a)(1) of the NLRA makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7" of the NLRA.

Additionally, California Labor Code § 96 and § 98.6 states that an employer may not discharge an employee or “in any manner discriminate, retaliate, or take any adverse action against an employee” for “lawful conduct occurring during nonworking hours away from the employer’s premises”. The exception is for any conduct that would be a substantial and material disruption to the employer’s business (California Labor Code § 98.6).

Employers: the best way to ensure that employees are not going to say negative things and hurt business is to make a workplace that is nurturing, fun, and enjoyable for everyone. This can be as simple as providing small perks such as staff appreciation activities, celebrating birthdays, or the occasional donut Mondays!

ABOUT THE AUTHOR: Nicole Fassonaki
Nicole Fassonaki, a partner at Fassonaki Law Firm, LLP in Woodland Hills, is a business law and litigation attorney.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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