Tis the season to be jolly, but not to be opinionated, boorish, drunk, or unprofessional. Companies may have holiday gatherings arranging from a cookie swap, luncheon, or even a formal dinner and dance. During this time of the year some workers may believe it appropriate to express why their religion is better than another worker’s and the employer can and should prevent such discussions. Given the recent elections, workers should be cautious about expressing their political opinions in that it may cause stress in the work place and, likewise, be cautious about how far they go in expressing their political views on social media. By way of example, if a worker expressed a desire to do physical harm to a politician on his Facebook page, in addition to possibly having a visit from certain governmental officials, he should expect the employer to fire him. Private employers have a great deal of rights to restrict speech of workers. The constitutional freedom of speech limits the government, not private employers, in restricting a person’s speech.
The National Labor Relations Board has recently issued a variety of decisions regarding social media which are aimed at protecting speech of workers, whether or not they are in a union or non-union shop, related to communications about their job. If a worker on his Facebook page discusses with other workers that he thinks that it is unfair that he and his co-workers have to work so many extra hours during the holidays, that could be protected speech that the employer cannot prevent or retaliate against the worker for making. If, however, the worker on his Facebook page makes unwelcomed sexual comments about a co-worker, such speech is not protected and the employer can, and in many circumstances may have the obligation to, take corrective action including possibly firing that worker even though that speech occurred outside of the workplace. The same rules would apply for socializing at a co-worker’s house.
Workers should also, irrespective of their job title consider that they are professionals in their job and act as professionals. A good rule of thumb is that if you would not feel comfortable explaining what you did or said at that gathering to your parents, spouse, or child you should not do it. Jobs in this economy are not easy to come by and it would foolish to lose one due to a moment of indiscretion whether it is at the keyboard, office water cooler, or a social gathering. For employers, it is prudent to be proactive in preventing harassment and they should speak with their employment attorney when in doubt as to what speech they can restrict and what speech in which the workers have a legal right to engage.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].