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How far do speech protections extend into the workplace?

Last month, a memo from a frustrated Google employee disparaging the company’s diversity initiative caused an Internet frenzy. In the memo, which drew the ire of many, the employee, a software engineer named James Damore, claimed that biological and psychological differences between men and women accounted for the underepresentation of women in the tech roles such as software engineering.

Damore was subsequently fired by Google on August 7th for violating their code of conduct and advancing harmful gender stereotypes. He filed a National Labor Relations Board (NLRB) complaint against Google the same day, alleging the company was retaliating against him for engaging in protected speech.

The NLRB is a federal agency who enforces protections for private employees under the National Labor Relations Act (NLRA). The NLRA is a law designed to protect employees who organize and collectively bargain to improve their wages or working conditions. It applies to both union and non-union employees.

The day after Damore filed his NLRB petition, the U.S. Court of Appeals for the Eighth Circuit issued a decision that may lend support for Damore’s position. 

Employers may not fire workers for engaging in protected activities without cause

In Cooper Tire & Rubber Co. v. NLRB, the U.S. Court of Appeals ruled that Cooper Tire overstepped its bounds in terminating a picketing worker who yelled made racist comments to a van of replacement workers during a protest.  The worker was subsequently discharged.

In its decision the Court of Appeals upheld a decision of an Administrative Law Judge who found that Cooper Tire violated the National Labor Relations Act by discriminating an employee who was exercising his Section 7 rights to “engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157. The court held that because the worker was not actively threatening any one in particular, his termination was not “for cause” and that the company could have addressed his racist comments without firing him.

Although the circumstances are different, Damore was not picketing; he was making a statement that could be construed as protected.

Protected speech versus free speech

The Google memo brings to light an area of tension in the employment sector. While free speech rights may be limited by an employer, protected speech that falls under the NLRA cannot. As highlighted by the Cooper Tire case, an employer’s ability to constrain an employee, even one who may be spouting racist rhetoric, could be limited.

What can employers do enforce their workplace policy while avoiding a retaliation claim?

Employers should start their protections by evaluating their workplace policies to ensure that the language of the policies themselves do not violate Section 7 of the NLRA. If there is any opportunity to interpret the policy as limiting an employee’s right to speak as it relates to workplace conditions, compensation, or other work circumstances, the policy should be revised. 

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