The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization sparked debate in a variety of settings. It was and continues to be front-page news in newspapers and their online editions, the prominent story on many news channels, and trending on social media. Make no mistake, employees are talking about this as well. Employers must consider how to address employees’ engagement in these conversations, both in the workplace and online.
There are a number of laws related to employee speech and activity, including most prominently the First Amendment to the United States Constitution and the National Labor Relations Act (NLRA). Regarding the First Amendment, it prohibits only the government from censoring or oppressing speech. While employees will sometimes reference their “right of free speech,” the First Amendment applies only to public sector employers and will not protect an employee’s speech in the private employment setting. It is important for public sector employers to note that the First Amendment also does not protect all speech, including obscene speech or speech that incites violence.
The NLRA applies to all private employers, both with unions and without, and prohibits an employer from restricting employees from discussing matters that affect their terms and conditions of employment. Specifically, Section 7 of the NLRA guarantees employees the right to engage in “protected concerted activities . . . for the purpose of . . . mutual aid and protection.” Section 8(a)(1) of the NLRA prohibits employers from enforcing any policies that either limit, or could be interpreted by an employee as limiting, Section 7 rights. Limited exceptions to Section 7 exist, such as when an employee’s speech renders the employee unfit because of his/her severe misconduct. These are high standards, and each situation is evaluated on a case-by-case basis. Employers should also be aware that many states also have public sector collective bargaining statutes that provide for protections for public sector “protected concerted activities.”
Activity is concerted if it involves a group effort of multiple employees, and is not for the sole benefit or on behalf of one employee. An individual employee’s speech may also be protected if the employee is raising a concern — directly or indirectly — on behalf of a group of employees. For example, assume an employee posts on social media that he or she is disappointed with the Dobbs decision, and that the employee wishes his or her employer would do something to address its impact on employees seeking abortion access. Then, a fellow employee comments on the post agreeing that the employer should develop policies to address those needs. In this scenario, the discussion is now considered protected concerted activity under the NLRA.
Discussions must also relate to terms and conditions of employment. Multiple employees expressing personal gripes or political viewpoints unrelated to work are generally not protected by Section 7 of the NLRA. But, if an employer implements a policy regarding a particular topic and employees express strong personal viewpoints about it, the discussions will become protected activity under Section 7 because of the tie to the terms and conditions of employment. This is also true if the employer does not implement a policy, but employees urge the employer to do so.
Employers must keep in mind that Section 7 protections do not shield employees from all recourse if they violate other lawful policies, such as anti-harassment and discrimination, bullying, or workplace violence policies. For example, if discussions turn volatile, which sometimes occurs when controversial issues are involved, employees are not free to then engage in threatening or harassing behavior. Employees who violate other lawful policies should be addressed in the same manner as any other policy violation. Employers should make certain that their workforce has been provided these conduct-related policies — and that there is an acknowledgment form to prove it — to ensure employees are not crossing certain boundaries when discussing hot topic issues. It is especially important to remind employees that they could violate those policies on social media as well, even if they are commenting outside of regular work hours.
Taft will continue to provide regular updates regarding legal developments following Dobbs that impact clients. Please contact the authors or Taft’s Post-Roe v. Wade Task Force with questions about these developments.