Where Free Speech Goes to Die: The Workplace

[xchrom]

http://www.businessweek.com/articles/2012-08-03/where-free-speech-goes-to-die-the-workplace



In America you can say pretty much whatever you want, wherever you want to say it. Unless, that is, you’re at work. Simply put, there is no First Amendment right to “free speech” in the workplace—potentially perilous for many employees in a polarized political year with a tight presidential race.

Current news provides plenty of examples of just how much leeway managers have to limit their workers’ freedom of speech, or to encourage political activity among employees. On Aug. 2, an Arizona-based medical supplies manufacturer, Vante, dismissed CFO Adam Smith for berating a Tucson Chick-fil-A employee for working at what he considered a homophobic company. Chick-fil-A has made national headlines recently for its president’s controversial comments about same-sex marriage.

“I don’t know how you live with yourself and work here,” Smith says in a video of the exchange, which was posted on YouTube (GOOG). “This is a horrible corporation with horrible values. You deserve better.” Vante quickly fired Smith, and posted its regrets about the incident in a statement on the home page of its website.

Bosses and those who work under them are not equal when it comes to free-speech legal claims. Employers have the right to take action against any employee who engages in political speech that company leaders find offensive. With a few narrow exceptions the Constitution and the federal laws derived from it only protect a person’s right to expression from government interference, not from the restrictions a private employer may impose, lawyers say.

[90-percent]

1. Run government like a business

Being employed in this day and age is a daily taste of what it's like to live in a

TOTALITARIAN POLICE STATE

At work employers seem to have all the rights while the employee has none. The possible exception being medical rights to privacy.

Employment in America presently is about as non-democracy as you can get.

Why the fuck anybody in their right mind would want our government "run like a business" is beyond my comprehension!

The one exception might be in a workplace that has a healthy UNION. That can at least afford you some BASIC HUMAN RIGHTS at work.

"They" treat people like animals and get away with it every working day in America.

I know there's exceptions and good for all my fellow DU'ers that are enjoying a "good job". Covet it like it was your child. It is rare and precious.

-90% Jimmy

[Gidney N Cloyd]

2. Was Adam Smith fired for exercising his 1st Amendment rights or for being an asshole?

[twizzler]

4. He was fired for being an asshole

I'm just speculating here but, when you get to that level of management, you usually have to sign a code of conduct contract which lays out what is expected of your behavior on and off the job.
One of those provisions is don't do anything that will bring negative attention to yourself or your employer, which he obviously did.
Also, when at that level of management, you are usually assigned a company vehicle, he was on his lunch break, so it's quite possible that he was using a company vehicle when he went off on his little rant which is more than enough grounds for termination.
He has since apologized, but he should have known better.

[slampoet]

12. Assholes don't have rights?

Good luck with that, person who no one has ever found to be an asshole.

[dflprincess]

26. He didn't have the right to verbally attack the employee who was working the drive through

and hold her responsible for the actions of the CEO of Chik-Fil-A.

[slampoet]

28. Verbal attack, is that a legal term or are you making up rights?

Just because he isn't right doesn't mean you can make up things.

[loli phabay]

3. I guess it depends if you are on your own time or purporting to be the company

and what exactly you are saying. Or if you decide to go worldwide viral.

[twizzler]

5. He was purportedly on his lunch time

but being a salaried employee, I think that is still company time.

[leftyohiolib]

6. when so much is riding on your job, you job should be better protected

another benefit of being in a union. (hmmmm.....that sound like a union slogan for a poster)

[MattSh]

14. Sorry, but I'm not aware...

of any CFO (Chief Financial Officer) ever being covered by a union or by union rules.

Upper management always did, and always will, live by different rules than the average worker. I'm surprised I have to even say this.

[leftyohiolib]

21. i was refering to a more general situation of watching what you say and not to the specific individu

al. but upper managemnt can and do form unions they cant do it here in the us so i was told. if upper manamgemnt wanted to they could send in the lobbyists and get it changed. but i wasnt refering to him specifically

[annabanana]

7. And this may be THE most compelling reason for an online pseudonym! . .n/t

(not really annabanana)

[appal_jack]

8. The Bill of Rights needs to accompany us into the workplace...

We Americans (hopefully) all embrace the Bill of Rights as a codification of fundamental, inalienable, and self-evident freedoms. Throughout American history, more and more of those freedoms have been 'incorporated' into state law via Supreme Court decisions. This process of honoring the Fourteenth Amendment via incorporation has allowed for much of the progress we Democrats cherish, as certain states had otherwise resisted rights being extended to certain races, to women, and (still) to people on the basis of their sexuality, for example.

States are what charter corporations and issue licenses (dba's etc.) to private businesses. Yet for some strange reason many Americans, including too many here at DU, find it perfectly acceptable that one's right to free speech, one's freedom from unreasonable searches and seizures, and nearly every other civil right and liberty enshrined in our Constitution end at the workplace door. This is a ludicrous and pernicious notion. Why should a state be able to create a private entity via a corporate charter which then can violate rights that the state otherwise must protect?

We ought to always emphasize that our Constitutionally-guaranteed freedoms can and should be exercised at the times and places where we spend the majority of our waking hours: the workplace. A corporation gaining a charter from the state should only be possible with if said corporation agrees to respect the fundamental freedoms of its employees. Indeed, how can a state give a corporation a power which the state itself does not have? If a state must respect the First Amendment, etc., then so must the corporations it charters.

[tritsofme]

9. Your relationship with the corporation is at will and voluntary

Not so with government.

If you disagree with an employer's legal business practices you can certainly quit.

[Zalatix]

10. Employers can regulate what you say off-hours by firing people for having opinions online.

[Robb]

11. A sensible opinion, until you are faced only with job opportunities with bigoted companies.

The choice -- starve your family or tacitly support the bigots who sign your paycheck -- is fast becoming universal, and is untenable.

[appal_jack]

13. Must be nice in La La Land...

Last edited Mon Aug 6, 2012, 11:46 AM - Edit history (1)

Sure, we can discuss some theoretical and ideal capitalism, where all market participants have full information, none has undue market influence or oligopolistic power, and workers are free to negotiate fair and equitable deals with capital as they trade labor for goods and services. But I have never lived in such a land, and I doubt you have either.

In the America I know, the interests of corporations and the state have converged so tightly as to be nearly indistinguishable. Large corporations, mega-churches, and think tanks for the 1% all maintain lobbying offices around the Capitol, ready to buy elections, influence contracts, and finesse the media with their own message.

Have you seen the photos from Anaheim, CA this month? I'm not there, so I won't pretend to know the situation fully, but I have seen enough to know that women are being shot with rubber bullets in the shadow of Disneyland's walls. Did you see anything of Occupy Wall Street's outcomes last year? Capital clearly is willing and able to muster the full force of the state whenever it feels even slightly challenged or questioned. Why should the People not retain at least a measure of their liberties in the workplace? Without exercising at least a measure of the enumerated rights of the first ten Amendments in the place most of us spend the majority of our waking hours, what chance do we have of progress? If you think that human rights and Constitutional liberties stand a chance in this landscape without the concerted demands of people being spoken and heard both in and out of the workplace, I'd like to hear your plan.

-app

[tritsofme]

23. So should an employer need a warrant to monitor customer service agent's phone calls?

I don't think you've thought this through.

[appal_jack]

25. Looking for balance here...

Given that presently, an employer has all the rights and the employee basically has none (outside the protected classes of race, gender, age, etc.) in most private places of employment, there is plenty of room for change for the better.

Have I thought out every contingency yet? Of course not. But I will stick to the idea that balance is a better option than ceding all power to capital, and depriving labor of any whatsoever.

One important balance that was already mentioned above would be the presence of more unions on job sites. At unionized workplaces, a committee review of speech-related disciplinary actions could weigh-in on whether the speech of concern really negatively influenced the job being done or not.

Regarding the customer service agent's phone calls, of course the employer has an interest in quality control of the customer service agent's job, so phone call monitoring is essential. But does the same employer get to go through their employee's bags? What about her car, parked outside in the parking lot? What about her bodily fluids (e.g. - a drug test that can also be used to ascertain pregnancy)? We have slipped pretty far down this slope, and there is no sign of slowing that I can tell.

-app

[CBGLuthier]

15. Bullshit. You have just as much right to FREE SPEECH at work as anywhere else. The problem is

people do not understand what the words free speech mean. All the words FREE SPEECH mean is that the GOVERNMENT will not LOCK YOU UP for just saying stuff. Well, most stuff anyway. Threats and such not included.

People keep assuming free speech mean speech without consequence. If you are an employee or a business owner and you say something people disagree with you will be punished.

BUT not by the GOVERNMENT. Except for a few idiot mayors who made themselves look like idiots.

This stupid and tiresome distortion of what FREE SPEECH means is getting a little bit old.

[appal_jack]

19. Reading Is Fundamental, my friend

Last edited Mon Aug 6, 2012, 11:49 AM - Edit history (1)

Nice straw man you are attacking there, about consequence-free speech, but no one brought that up before you did. In fact, the article linked in the OP already distinguished how the government is more constrained from retaliatory action than is private business:

Bosses and those who work under them are not equal when it comes to free-speech legal claims. Employers have the right to take action against any employee who engages in political speech that company leaders find offensive. With a few narrow exceptions the Constitution and the federal laws derived from it only protect a person’s right to expression from government interference, not from the restrictions a private employer may impose, lawyers say.

However, my own response #8 and subsequent discussion both attempt to illuminate the role that government plays in chartering and sustaining corporations. With that government support comes a corporate obligation to balance the free speech rights of employees with the desires of owners and capital. You need some more examples? OK, since 2008, most large banks only continue to exist thanks to the US taxpayer. All our defense corporations, from McDonnell Douglas to Lockheed Martin, etc. all feed from the 57% of Federal revenue presently devoted to the military.

I am not calling for 'consequence-free speech.' As far as I am concerned, a sole-proprietor business owner who does not take public funds in any form can be as dictatorial as he likes about speech in his workplace. But most businesses these days are corporate, thanks to the very real benefits granted by government to corporations. And all my life corporations, those artificial constructs with state charters granting them limited-liability, have been socializing risks and privatizing ever more of the public sphere and their own profits.

I am saying that with a state charter, with public funds, and other social support that corporations receive, comes some responsibility to honor the spirit of the 1st Amendment. A more proper balance needs to be achieved, one that acknowledges that corporations receive considerable support from the state, as they hire citizens. The idea that owners and investors can buy media and make donations as 1st-Amendment protected free speech, while workers can be fired at will for any controversial views is a recipe for 1%-er totalitarianism. You may be comfortable in such a world, but this Democrat is not.

-app

[Odin2005]

16. A corporation is a little totalitarian state.

[appal_jack]

22. Too true, at present.

Are we Democrats comfortable with the idea that a state's power should be used to charter 'little totalitarian states?' Or might we amend corporate charter laws to incorporate a bit more freedom for workers, for unions, and for civic engagement?

-app

[cbdo2007]

17. I couldn't be more happy about no free speech in the work place.

After all, if I could talk about politics at work I probably wouldn't come to DU anymore.

Anyways, politics has no place in most jobs. We have way too much to do here at work than get into political discussions, especially when half the people here are right wingers who don't have the ability to see reason.

If I owned a company I wouldn't want people discussing politics either, no matter what their political affiliation. We're not here to make friends and socialize, we're here to work and make $$$

[joeglow3]

18. Does the same hold true at DU?

Seriously, why would an employer want to allow this? Think about the reaction you see here when a freeper sneaks in and posts. You want to try and create a harmonious environment in your workplace. Having people discuss politics is not a good way to foster that.

[LanternWaste]

20. I don't think that accepting the consequences of free speech...

I don't think that accepting the consequences of our free speech is the same animal as an absolute denial of the existence of free speech in a particular forum or environment.

[Octafish]

24. Huh. That's the same place Democracy goes to die.

What a coincidence. Work.

[mindwalker_i]

27. Hey, you can say whatever you like at work

They can just fire you for it. I don't see anything wrong with that. Where I work, there is a very strong policy against creating a "hostile work environment." That means no whistling at women, for one thing. As someone who cracks a lot of REALLY bad jokes, I'm all for this policy!

[Trillo]

29. Probably off topic. Reminded me of one of my first bosses.

A building contractor, way back decades ago. We were working together on the jobsite, and I mentioned to him, just me and him though, no third parties were around, that I thought if a different "piece" was used, the layout of the finished job would look better.

I was called the next morning, and told to never return!