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Free Speech Rights Fuzzy for BLM Shirt, Confederate Flag at Work

June 26, 2020, 9:41 AM

The national conversation on racism and police brutality in America has cast a spotlight on the limited rights workers have to express political beliefs on the job.

What companies can legally do to regulate speech in the workplace is a separate matter from what they might decide fits their business interests. For example, Starbucks Corp. earlier this month reversed its policy that had barred workers from wearing buttons or apparel supporting the Black Lives Matter movement.

Starbucks baristas and other workers in the private sector don’t have federal free speech rights, First Amendment scholars said. Businesses aren’t bound by the First Amendment, giving them wide latitude to discipline or fire their employees for wearing Black Lives Matter buttons or hanging Confederate flags on their cars in companies’ parking lots.

The decision to discipline or fire an employee based on political expression can be complex, even though employers should clearly act if one worker offends another based on race or another protected identity group, said Philippe Weiss, president of Seyfarth at Work, a subsidiary of the management-side law firm Seyfarth Shaw.

Companies must consider several factors when deciding on employee discipline, from the potential public relations and employee morale implications to compliance with workplace laws, Weiss said.

Employer policies restricting—or allowing—political expression can conflict with employees’ rights under labor and anti-discrimination laws, scholars said.

The Equal Employment Opportunity Commission, which polices bias in the workplace, has argued that displaying Confederate flags contributed to evidence of racial harassment against black workers. The agency also ruled in a federal-sector case that a postal worker had a viable claim for a hostile work environment based solely on coworkers repeatedly wearing T-shirts emblazoned with the Confederate flag.

The National Labor Relations Board, which administers federal labor law, generally permits workers to wear union insignia as part of their right to act together to improve employment conditions, with narrow exceptions for “special circumstances.” Political speech against racial injustice could fall under legal protections afforded to efforts at improving the workplace.

Although the U.S. Constitution doesn’t interfere with employers’ ability to regulate political speech, a few states give workers statutory protections. Connecticut, for instance, forbids companies from disciplining their workers for engaging in First Amendment-protected activity as long it doesn’t interfere with their job duties or working relationships.

Working for the Government

Government workers do have some First Amendment protections to speak as citizens about matters of public concern, legal scholars said. But government employers can regulate such worker speech when they have a legitimate reason.

Courts generally defer to public employers that restrict speech for reasons like preventing conflicts over politics, said Robert Post, a Yale University law professor. Those employers don’t have to wait until a problem arises to lay down rules, he said.

But facts matter when courts review such restrictions, said H. Jefferson Powell, a law professor at Duke University. Rules forbidding politically charged emblems on a government employee’s car parked at work would probably fall to a First Amendment challenge, he said.

“A car is one of the ways that many Americans state their views about all sorts of things,” Powell said. “That’s more like a sign on a worker’s front lawn.”

In addition, the First Amendment typically bars the government from restricting speech based on particular political viewpoints, said Alexander Tsesis, a law professor at Loyola University in Chicago.

That means rules that prohibit public sector workers from wearing one political symbol, like a Confederate flag, but permit others are the least likely to win in court, he said.

“The government cannot say your viewpoint is wrong,” Tsesis said.

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editor responsible for this story: Karl Hardy at khardy@bloomberglaw.com

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