Free speech in the workplace

Q: With all the political turmoil in
the world today, our laboratory has become a tense place to work. We have opinionated technologists and phlebotomists of every political persuasion. Some of the discussions over the workbench have become pretty heated. As supervisor, what rights do I have to limit these encounters? I have tried to restrain these encounters, but am confronted with the notion that this is America, and we have free speech.

A: The discussions in your lab have
gone beyond pleasant conversations, threatening the ability of your staff to do its daily work in an efficient fashion. On that basis alone, you have a right as supervisor to correct the situation. How you do it will depend on whether you work for a private corporation or a government facility.

Employees of a private company do not have any right to free speech on company premises. The First Amendment only guarantees that the government will not interfere with the right of free speech. As long as you are employed in a private, not a government, institution, you have very broad rights to limit discussions in which your staff engages. Government employees, however, have more protected rights to speech. If you work in a government-affiliated lab, seek specific legal advice from your institutional attorney to ensure that you know the limits under which you must work.

Private businesses are actually entitled to restrict almost any sort of private, nonbusiness discussion, though few do. In reality, nearly every workplace tolerates a certain amount of nonbusiness-related chatter. As long as this does not interfere with the daily business activities, and as long as such conversations do not violate the rights of other employees to be free from harassment and workplace hostility, casual conversation is a good thing, fostering teamwork and respect and providing a welcome safety valve against job pressures. 

When feelings run high, however, and when discussions cross the line from pleasant discourse to unpleasant harangues, it is time for the employer, the supervisor or the director to step in. You will want to call your staff together to discuss the situation, making certain that everyone understands the ground rules. Look to the administration of your institution to provide a policy from which to work.

Such a policy should clearly state the right of the employer to limit nonbusiness speech. Include a memorandum from the institutions attorney on the subject for reinforcement. You may also wish to include the attorney in any meetings you have to disseminate and explain the policy.

Unless it is desirable to limit all nonbusiness speech (and it usually is not), the policy should permit the employer, director or the supervisor, to develop guidelines, as needed, to restrict the participation of employees in nonbusiness discussions. In general, the policy should enable the employer to limit any discussions that disrupt daily operations and the smooth flow of work. It should also permit the employer to limit conversations that become abusive, harassing, offensive or aggressive. Of particular concern are discussions of politics and religion that are likely to end up in shouting matches.

The policy should restrict employees from engaging in any such discussions with patients or families. Give staff members ways to avoid or disengage from such discussions, rather than being trapped into responding. Have your human relations department help develop role-playing scenarios to get the message across.

It is also a good idea to restrict solicitations at the workplace in the same policy. The workplace is a captive audience, and not one in which it is appropriate for employees to solicit each other for support for Girl Scout cookies, school fundraisers or other pet projects. A policy against solicitations also gives staff a graceful way to avoid having to refuse the request of a co-worker and thereby avoid hurt feelings.

As a cautionary note, remember that not all permissible restrictions on speech are desirable. A number of institutions in the aftermath of September 11 restricted employees from wearing or displaying flag pins, yellow ribbons and posters of support. Although technically permissible, such restrictions often cause hard feelings. Limit the use of restrictive policies to situations that actually disrupt the daily lab operation or have the potential to create long-standing staff divisions.

The policy should provide a mechanism to counsel individuals about compliance with the policy particularly if you have an ongoing problem that will take some time to resolve and also for employees to report inappropriate behavior, harassment or ridicule.

Firing an individual for his political or religious views puts an employer at risk for a charge of wrongful discharge. Disciplinary actions must be well documented and taken on the basis of a violation of policy. Failing to comply with policy, particularly after being warned, is insubordination.

Barbara Harty-Golder is a pathologist-attorney in Sarasota, FL. She directs the clinical laboratory at Health South Rehabilitation Hospital in Sarasota, and maintains a law practice with a special interest in medical law. She writes and lectures extensively on healthcare law, risk management, and human resources management.

May 2003: Vol. 35, No. 5

© 2003 Nelson Publishing, Inc. All rights reserved.