![]() ![]() 2 The philosopher Elizabeth Anderson has emphasized the consequences of employers’ freedom under the at-will rule, characterizing private-sector employment as a form of “private government,” and a dictatorial one at that. 1 One employment law casebook describes the at-will rule like this: “the employer free to impose any conditions of employment, to discharge an employee at any time for any reason, and to effect the discharge in virtually any manner” (Rothstein, Liebman, and Yuracko 2015). states-every one except Montana-the default setting for private-sector, nonunion employment is “at-will,” which is often described as employment from which employees can be fired for a bad reason, an arbitrary reason, or no reason at all. ![]() This paper discusses the reasons for-and limits of-employer control over employees’ expression. workers are not really free to speak their minds, and it’s not the government censoring them but their bosses, even when the workers are off duty and even when they are outside of work. IntroductionĪmericans are divided on any number of fundamental questions, but a recent poll shows broad support for free speech: “Seventy-one percent of Americans think that people should be able to say what they want without state or government censorship” (Gray 2016). It shows how employers have come to monopolize that freedom for themselves, and why workers experience speech control instead of speech freedom. This report aims to help readers understand the legal landscape that effectuates the “freedom of speech” at work. ![]() ![]() The result is that one real source of protection for workers who speak out-collective bargaining agreements in which employers agree to discipline or fire workers only for good cause-are increasingly out of reach, especially for private-sector workers. But workers cannot achieve these protections without either individual or collective power, both of which have eroded for many workers over the last 80 years. Worse, employers sometimes challenge even limited protections for workers’ expression on the grounds that those protections violate the employer’s own rights under the First Amendment.įinally, some workers have meaningful contractual protections that curb the effects of the at-will doctrine, including as it applies to their speech and expression. But each of those laws has serious limitations in coverage, enforcement, or both. Likewise, some states and localities forbid employers from retaliating against employees for their political views. For example, among other limits, the NLRA protects only those conversations or meetings that occur during “nonwork time,” and the Trump NLRB has recently held that the NLRA does not protect employees’ use of their work-issued email addresses. For example, the National Labor Relations Act protects employees’ conversations about their working conditions-but only as long as those conversations occur at the right time, in the right place, and in the right manner. These laws tend to apply only to specific subjects and manners of expression. Further, because the First Amendment does not constrain private actors, private-sector workers cannot fall back on the constitution at all even public-sector employers are often free to fire or discipline workers for their speech.īeyond common law rules, the report also discusses federal, state, and local statutes that protect certain types of employee speech. This rule has its limits-for example, employers may not fire workers in contravention of a state’s explicit public policy-but judges tend to apply these exceptions in a patchy and inconsistent fashion. Following a summary that emphasizes the scope of the problem and gives examples, it begins by discussing the background rules of at-will employment, which establish that employers may generally terminate workers for what they say. This report traces the legal rules governing freedom of speech at work. The freedom of speech that so many Americans valorize is in practical effect illusory for many American workers. Employees have been fired, often without legal recourse, for criticizing their companies on social media, for running for office, or even for having a bumper sticker supporting a political candidate whose election the boss opposes. Among the bad or arbitrary reasons that employers sometimes fire workers: something the worker said, or something they didn’t say. “At-will” employment is sometimes shorthanded as employers’ rights to fire employees (and employees’ right to quit) for a bad or arbitrary reason, or for no reason at all. Recognizing this inherent workplace inequality will bolster freedom,Įconomic fairness, workplace protections and democracy. Reestablish the understanding in law, politics, economics, and philosophy, that equal bargaining power between Part of the Unequal Power project, an EPI initiative to ![]()
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