Free speech on the job, and what that means

Google fires employee after controversial memo
Google fires employee after controversial memo

There is no constitutional right to free speech in the workplace.

"As a general rule, the First Amendment doesn't apply to the private workplace," said Daniel Schwartz, employment law partner at Shipman & Goodwin. Instead, the First Amendment prevents government, but not companies or individuals, from limiting free speech.

You can say whatever you want in a private workplace, Schwartz said, but you should "assume your employer might have something to say about it."

But some forms of employee speech are protected by the nation's labor laws.

"Employees have the right to talk about their wages, hours and working conditions," said Heather Bussing, a California labor attorney.

The difference will likely be at the center of the controversy swirling around a diversity memo written by a now ex-Google employee.

Software engineer James Damore posted a 3,300-word criticism of Google's diversity policies on the company's internal website. In it, he said he valued diversity and inclusion, but argued that the biological differences between men and women "may explain why we don't see equal representation of women in tech and leadership."

Related: Google's open culture tested by engineer's anti-diversity memo

Damore confirmed to some other news outlets on Monday that he had been fired as a result of the memo.

Google (GOOG) has yet to confirm his firing, although a source confirms he is no longer an employee. But CEO Sundar Pichai said in a response sent to Google employees, that while "we strongly support the right of Googlers to express themselves ... to suggest a group of our colleagues have traits that make them less biologically suited to that work is offensive and not OK."

Pichai said that sections of the memo violate the company's Code of Conduct, which requires "each Googler to do their utmost to create a workplace culture that is free of harassment, intimidation, bias and unlawful discrimination."

Related: Silicon Valley spars over Googler's essay

Bussing said that parts of the memo, like his criticism of the company's diversity program, could be considered a discussion about working conditions that is protected by law. But other parts could be considered offensive by Damore's co-workers, and Google had a right to take action.

"Google says it has a line, and that this [memo] crossed it," she said.

Damore told the New York Times that "I have a legal right to express my concerns about the terms and conditions of my working environment and to bring up potentially illegal behavior, which is what my document does."

The memo could also be a different form of protected employee speech that labor law calls "concerted activities." Typically that's speech by employees who are seeking to form a union. But any kind of "call to action" directed at other employees could also fall into this category, said Eric Meyer, a labor law partner Dilworth Paxson who runs the blog The Employer Handbook.

"It's possible he may have a claim," said Meyer.

But a company can fire an employee for violating policy even if his or her speech is protected, Meyer said.

Employers can have a policy to create whatever culture they want inside the business, and to get rid of employees who do not fit in that environment, as long as that policy does not discriminate against a class of people based on characteristics such as gender, age or race, according experts.

"Companies have a right to manage their workplaces as they want," said Schwartz. "they can prefer one point of view over another If they want."

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