Citizen Rights vs. Employer Rules

Actress Roseanne Barr’s Twitter tirade on Tuesday morning ended up costing her more than just a publicity black eye.  The Walt Disney ABC network canceled the revamp of Roseanne in response to the actress’ comments about former President Obama aide Valerie Jarrett.  

This is not the first time someone has been punished for voicing their opinion nor will it be the last.  Almost exactly one year ago comedienne Kathy Griffin lost one of her gigs because of her depiction of President Trump. Recently the NFL made a rule that players cannot kneel on the field in protest during the national anthem lest their owners be fined.  These stories are certainly different ends of the spectrum but they typically result in the same line of questioning from Americans:  what about my right to free speech?  The simple answer to that question is there’s a very slim chance you’re being deprived of your rights.

“For the most part it’s only a Constitutional issue if there’s a state action, a government action, if the government is saying ‘you can’t say this.'” says Husch Blackwell Labor and Employment attorney Paul Pautler.  “If it’s simply your employer then that’s not a Constitutional issue.  It may or may not be another problem.  But people get confused and say that’s a violation of their Constitutional rights.  Unless the government is their employer, then it’s not a violation of their Constitutional rights.”

As social media has evolved and every action becomes more visible to not just one community but the world, the line seems to float somewhere in the choppy sea of the court of public opinion.  That makes it tough for employers to figure out how to discipline employees for saying something that could be detrimental to the company’s brand or reputation.  “There’s nothing wrong with terminating an employee for portraying your company poorly out in the community,” says Pautler, but there is an exception.  “Some of that can change if the reason you discipline an employee is because of the content of their speech.”

Clear and consistent is the approach that Pautler recommends.  “For instance, if they discipline only people who are speaking about a particular racial issue but they don’t discipline people who are speaking about the other side of the racial issue, there can be some issues there.  You don’t have free speech rights per se with regard to your employer, unless your employer is the government.  But you are protected, for instance, if they are monitoring your speech rights based on your religion, or your race, or your veteran status or any protected activity.  That’s where employers can certainly run afoul.”

So back to the case with the NFL.  As you hear many players say when they get traded or released,”It’s a business,” and that’s the key component when it comes to the latest rule.  As much as you may disagree with the rule, as much as you may dislike the players kneeling during the anthem, it’s entirely up to the employer on how to handle it.  “It’s not a Constitutional violation for the NFL to say ‘you can’t protest in this way,'” says Pautler.  “But it may have huge ramifications out there in the public, one way or the other.”