‘Is There Free Speech at Work?’

Leave it to the HRExaminer site, a frequent font of succinct and straightforward takes on HR, to provide us with this gem — “Is There Free Speech at Work? — by Heather Bussing, an employment lawyer and one of the site’s regular writers.

Not only is it informative, it’s timely — as a confluence of social media and rules and guidances from the National Labor Relations Board about social media streams into the workplace. (See this earlier post that provides a rundown of the NLRB’s new rules, with links to further background on them.)

Bussing starts off with an interesting and perhaps little-known fact, especially outside HR and employment-law circles: “Employees don’t have a Constitutional right to free speech or freedom of expression at work.” It’s only in the murky sea of social media, an employer’s attempt to control it to save its reputation and image, and the government’s attempt to squelch that attempt when protected concerted activity comes into play that the murk gets murkier.

“You know you can probably get fired for telling your boss to her face ‘Go to hell,’ ” she writes. “But complaining about her on Facebook can be protected speech.”

Interestingly, she writes, “employees’ protected speech under the National Labor Relations Act [which gives employees the right to discuss wages, hours and working conditions as well as organize a union] is actually an exception to an employer’s broad rights to restrict both speech and expression at work.”

I love her directness:

Saying the supervisor is a wing-nut, even to another co-worker, is probably not protected until there is something more that shows the employee was trying to get other employees to change working conditions. While getting rid of a bad boss would certainly change the work environment, just calling her names won’t. So name-calling is usually a personal gripe, and not protected.

The whole piece is worth reading, so I’ll stop with all these teasers. Except this last one, a key point to remember as you navigate this ever-expanding social-media-policy murk. Plus, Bussing just says it so well:

If what the company is really worried about is looking bad, then it should probably look deeper to see if there are things going on that would make it look bad. If so, it’s not a social-media problem, it’s a management problem. And policies and controlling what people say are not going to help.

There is no way to stop current or former employees from trash talking on social media. Employers shouldn’t try. It just creates a culture of monitoring and suspicion. Discipline, denials and drama just make it worse.  Social media is fast moving and things pop up and die quickly if they are ignored.

The best way to encourage employees to say great things about you is to be a great employer with a great service or product.

There are some companies that are horrible places to work or their products and services suck. They won’t survive social media. And that’s a good thing.