Shut up and work: The question of free speech on the job

graphic“Discussing political views is not advisable.” This 1905 rule for Iowa teachers apparently also applies to Delta Airlines workers in 2014.

The Story County, Iowa teaching contract was explicit in saying teachers should not talk politics — or loiter in ice cream parlors, play cards, dance, or indulge in “undue use of cosmetics.” While the code of conduct for teachers seems antiquated and laughable, the continuing right of employers to control workers’ speech and conduct, on and off the job, is no laughing matter.

First published in Workday Minnesota, 12/14/2014.

Delta Airlines fired baggage handler Kip Hedges for speaking out about wages and the $15Now minimum wage campaign in a Workday Minnesota video. Hedges was off-duty and outside the terminal when he spoke. This is what he said:

“A lot of the Delta workers make under $15 an hour. As a matter of fact, I would say probably close to half make under $15 an hour. So there’s a lot of them that understand how important this is. And a lot of the better-paid workers also understand that the bottom has to be raised otherwise the top is going to fall, as well.”

Just 65 words, and less than 30 seconds in the video and the 26-year Northwest/Delta baggage handler is out of a job.

Hedges’ dismissal may have been premised on provisions in employee handbook. That’s hard to say for sure, because the handbook is not public, and Delta failed to respond to requests for information about specific policies. Their only response to repeated requests for information or an interview was a statement that said “Delta requires all employees to meet company performance and conduct standards,” and referred to “upholding our core values of respect and honesty in any communications regarding Delta.”

Hedges said that Delta told him he had violated policy, but “they haven’t actually told me what sentence or exactly what it is that I did wrong. They just said disparaging remarks and they deemed them to be untrue.”

Whether or not there’s a specific provision in the employee handbook about “disparaging remarks,” Delta clearly based the firing on what Hedges said. He was fired for his speech.

Protecting speech

Unionized employees have the protection of a contract. Without a contract and union protection, employees can be fired for almost any reason, or for no reason at all. Want to fire someone because they have a beard? Go right ahead — no law protects people with beards. Want to fire someone for marching in a protest over police killings of young Black men? That seems to be an employer’s right. No law provides protection for political activity or exercise of free speech as such.

The First Amendment protects free speech against government interference.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The First Amendment offers no protection against employer restrictions on free speech. In theory, it seems possible for an employer to prohibit any political activity or speech, on or off work premises, during work hours or during non-work time.

Employers can fire workers for almost any reason. The exceptions are carved out in specific legislation. The 1964 Civil Rights Act protects against firing because of race, color, religion, sex, or national origin. The Age Discrimination Act protects individuals over 40 against firing because of their age. The Americans With Disabilities Act also provides some protections.

With narrow exceptions, employee exercise of free speech is not protected from employer retaliation by U.S. law. Those narrow exceptions come from civil service rules protecting government employees, the National Labor Relations Act, the Railway Labor Act, and the Sarbanes-Oxley whistleblower provisions.

National Labor Relations Act

The National Labor Relations Act protects “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” That is a strong protection for some employee speech. Recent cases have upheld employees right to speak in person and on social media, so long as the speech is directed toward fellow employees with a goal of organizing for concerted action in the workplace or about workplace issues.

How does that work? The Bettie Page case offers a good illustration. In this case, employees of Bettie Page Clothing complained about late closing hours in an unsafe neighborhood. They took their complaints over their supervisor’s head to the owner, and then also posted on their Facebook pages. They were complaining about and trying to change their working conditions, though not organizing a union. However, the NLRB still held that this was protected activity:

“The Facebook postings were complaints among employees about the conduct of their supervisor as it related to their terms and conditions of employment and about management’s refusal to address the employees’ concerns. The employees also discussed looking at a book about the rights of workers in California so that they could determine whether the Respondent was violating labor laws. Such conversations for mutual aid and protection are classic concerted protected activity, even absent prior action.” [Emphasis added.]

What would have happened if they had been fired for complaining about Berkeley police or California taxes? Since these are not workplace issues, the NLRA could offer no protection.

Railway Labor Act

Employees of transportation companies are not protected by the NLRA. Neither are government employees, agricultural workers, and domestic workers.

As an employee of an airline, a transportation company, Kip Hedges is not covered by the NLRA. Instead, Delta and its employees come under the provisions of the Railway Labor Act. The protection of the Railway Labor Act is similar to that of the NLRA, but the procedure for enforcement is different, and more difficult. Instead of the administrative process within the NLRB, an employee covered by the Railway Labor Act has to file suit in a federal court.

Hedges said he is appealing his firing with Delta. If the internal appeal fails, then he’ll sue in federal court.

Hedges started working for Northwest Airlines in 1988, and has been active in the International Association of Machinists (IAM) and then in union organizing for years. Before its merger with Delta in 2008, Northwest Airlines had union representation of baggage handlers. Delta’s baggage handlers were non-union. In a 2010 election, the union lost by 300 votes, out of 14,000 workers.

Since that election, Hedges has continued on the IAM organizing committee. He said he has been called into the office and warned about union activity in the context of Delta’s advocacy policy. He said he knows the policies, but had no idea that a statement made outside the terminal and in support of higher wages could be construed as cause for firing.

Whistleblower protection

The Sarbanes Oxley whistleblower protection is quite limited, applying only to accusations of certain kinds of fraud, made by employees of publicly traded companies, to their own supervisors or a limited class of investigative and law enforcement agencies. Other whistleblower laws protect employees making complaints to OSHA, truck drivers with safety complaints, and a whole spectrum of limited-application provisions ranging from pipeline safety to discrimination. In addition, individual states have whistleblower laws.

Special cases

Different rules apply to government employees. Since 1939, the Hatch Act has limited political activity by federal (and District of Columbia and some state and local) employees. In 1993, the Hatch Act was amended to allow increased political participation by covered employees.

Journalists usually face restrictions on their political speech and activities. For example, NPR recently warned its employees that they were not allowed to participate in a national march against police violence:

“Basically, we believe journalists can go see such events, even if they’re not assigned to cover them, so long as they don’t ‘participate.'”

The warning was accompanied by a reminder about social media policies and restrictions on what NPR employees should post on their Twitter or Facebook accounts.

Free speech and workers rights

U of M law professor Stephen Befort and Carlson School of Management professor John Budd co-authored a book on workplace law and public policy, Invisible Hands, Invisible Objectives, which includes a discussion of free speech rights. Noting that free speech rights are “strikingly weak for employees in U.S. private sector … workplaces,” they provide examples of employees legally fired for their speech: an employee who complained to her manager about toxic chemical pollution in workplace air, a truck driver who reported unsafe brakes, an employee who opposed a co-worker’s sexual harassment, a worker who responded to perceived discrimination by saying, “Blacks have rights, too,” a group of supervisors who refused to wear anti-union buttons.

Befort and Budd advocate statutory protection for employee free speech, both on and off the job, arguing that the change in society over the past 200 years makes protection from employer power crucial to individual freedom today.

“When the 1st Amendment was adopted more than two hundred years ago, the United States was largely a rural, agrarian society. The workplace was not a significant aspect of daily life and social interaction. … But today the workplace dominates daily life, and multinational private employers rival governments in size and power.”

While the Hedges case involves speech, other infringement on political action and civil liberties is also at stake. Employers can require workers to attend political speeches, or use company email to communicate political messages. They can forbid employees from wearing political buttons at work. Existing law does not clearly prevent employers from prescribing political activity — or inactivity — as a condition of employment.

The Hedges firing shows both the need for increased statutory protection of workers’ political rights and the crucial importance of worker protection through union representation.

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