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Employees of private companies generally are free to speak about or post their opinions regarding politics or other controversial topics, and employers are limited in what restrictions they can impose.

But, contrary to popular belief, the protection of employees’ free speech comes not from the First Amendment to the U.S. Constitution, but from Colorado’s Lawful Off-Duty Conduct statute. That law prevents an employer from firing an employee from lawful off-duty activity, including political activism.

Employers can, however, limit what employees can say on behalf of the company, such as on the company’s social media accounts.

The First Amendment reads as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Clearly, those proscriptions apply to government, said George Russo, director of the southern regional office of Employers Council.

“The First Amendment restricts what the government can do, what laws they can create, that restrict free speech,” Russo said. “There’s a big distinction between a government or public employer and a private employer.”

Like many states, Colorado passed a law that prohibits an employer from terminating an employee because the employee engaged in a lawful activity away from the workplace during nonworking hours. Passed in 2020, the bill does provide two exceptions:

• Employees can be terminated for off-duty conduct that is reasonably related to their employment and the company’s business interests; and

• Employers can terminate an employee if necessary to avoid a conflict of interest or the appearance of a conflict of interest with any responsibilities of the employer.

“There is an American ethic of freedom of speech and freedom of expression, and private employers generally don’t want to interfere with their employees,” said Robert Gardner, attorney with The Gardner Law Office.

But if an employee’s speech reflects upon the employer and the employer’s position in the community, “it begins to be one of the exceptions to the lawful activities statute,” Gardner said. It may be hard to prove, however, that an employee’s activity has a negative impact on the employer’s status, its customers and community standing.

“Those cases are always difficult,” he said.

CONFLICTS OF INTEREST

Employers have more control over such things as political speech within the workplace.

Employers can clamp down on political speech as long as the policy is neutral, said Maggie Roddy, a staff attorney with Employers Council.

For example, an employer could not ban speech “just about Black Lives Matter,” she said, but “‘No political speech in the workplace’ would be fine.”

Employers also can restrict access and what can be said on social media accounts that the company owns.

“They can also say, ‘You’re not allowed to use your own social media while you are on duty,’” Russo said.

Under the National Labor Relations Act and Colorado law, employees also have the right to talk about pay and other conditions of employment within or outside the workplace.

“But once employees clock out, private employers really should just not get involved,” Russo said, unless something like a Facebook post is a conflict of interest or contradicts their job.

“A racist statement could be a conflict of interest if the employer does not want to be seen as employing racist individuals or be seen as a racist company,” he said. “There’s very directly a conflict of interest if the individual is talking about another employee.”

Employers also may control when and where employees can engage in other kinds of discussions, said Joel Pratt, an attorney with The Law Office of Dailey & Pratt.

If employees “are sitting around the watercooler” and talking about political topics rather than doing their jobs, “certainly the employer can say, ‘Let’s not talk about that right now. Let’s get back to work,’” he said. “To the extent it’s disruptive in the workplace, employers can absolutely regulate that kind of speech.”

Whether or not an employee’s speech affects the workplace or the company is “a balancing question,” Pratt said.

“You can certainly tell people they’re not allowed to discriminate against other people who are part of a protected class,” he said.

An employer is required to act in some situations that involve discrimination or harassment.

If an employee is creating a hostile work environment, for example, by sending explicit texts outside of work hours, and the employee receiving the texts reports the harassment to their manager or HR department, “the company could be liable under Equal Employment Opportunity Commission regulations and Title VII” if it does not act, Pratt said. “That is the government telling an employer they have to regulate certain kinds of speech.”

But other cases aren’t so clear.

“There’s a difference between an employee going home and posting on Facebook something negative about the company or about their boss or about a coworker, and something that their boss or coworker disagrees with, or even that their boss or coworker finds offensive,” Pratt said. “Those are the prudential questions that an employer has to answer with social media policies, as they relate to speech. 

“First, does this affect the company at all? And two, does it affect the ability of other employees at the company to be able to speak? I would think, just as a personal matter, if it’s outside of those two categories, it’s probably something that companies shouldn’t be regulating.”

FEDERAL CONTRACTORS

For the most part, federal contractors that are private employers and subject to the same rules as other private employers and can regulate speech on duty, Gardner said.

“I would say that the scope of what a government contractor might prohibit could be broader than other private employers just because of the nature of the customer — the federal government — and many times the nature of the work, that being classified national security work or work that’s proprietary to the employer,” Gardner said. “So executives or managers within a government contractor might find that, even on social media, expressions about political activity or politically motivated activity might be detrimental to the executives’ ability to do their work.”

An employee’s activity that caused a conflict of interest or the appearance of a conflict of interest between the employee’s duties and what the company is required to do for the employer could be problematic as well, he said.

Government contracts may explicitly restrict disclosure of information that employers are privy to, he said. 

While you won’t find restrictions on political speech in government contracts, contractors may want to have limitations based on their relationship with the government, Gardner said.

“What comes to mind is speech that might advocate for the overthrow of the government,” he said. While that speech might be protected by the First Amendment, it would be inconsistent with the federal contractor’s duties.

“It’s important to factually analyze these things,” he said. “It can be a difficult line.”

WHEN TO STEP IN

“From an HR perspective, you really can’t limit an employee’s free speech, but the employee can’t speak on behalf of the employer either,” said Reanna Werner, founder and chief problem solver at HR Branches.

“They can’t go on social media and represent the employer with a political or a personal perspective,” she said. 

While she doesn’t recommend that employers monitor their employees’ personal social media accounts, employers should be aware of situations where they need to step in if opposing viewpoints are causing rifts in relationships. 

“Interpersonal relationships add another layer of complexity,” Werner said. “You can’t necessarily stop employees from talking about their personal opinions or forming relationships within the organization. We have had to mediate a number of situations where employees have very heated personal opinions about topics such as COVID.” 

Employers who see such conflicts developing would be wise to step in, she said. 

“It never hurts as an employer …  to have pre-emptive conversations and trying to either build a bridge or help the individuals involved and make sure that we’re respecting everybody within the workplace,” she said.

Social media policies should make clear that postings by an employee on behalf of the company are not allowed with explicit authorization, and that posting of internal, confidential, sensitive or proprietary information is prohibited, Werner said.

“We always state that this policy does not restrict the employee’s right to discuss or act together to improve wages, benefits and working conditions,” she said. 

In addition, employers cannot make employment-based decisions based on an employee’s personal actions, as long as they don’t impact the organization.

However, “I’ve had to terminate many employees based on derogatory remarks about their employer,” Werner said. “In this day and age, that stuff just does not go away, and it’s very easily found. It creates a negative perception not necessarily on the boss but on the person posting. Oftentimes, they do more harm to themselves.”

Reporter

Jeanne Davant is a graduate of the University of North Carolina. She worked for daily newspapers in D.C., North Carolina and Colorado, and has taught journalism and creative writing. She joined the Business Journal in 2017.