Copyright 1999 by Scott
Hays
Magazine: Workforce
Topic: Censored! 'Free’
Speech at Work
Byline: Scott Hays
link
Modern management theory about the ideal
work environment seems to revolve around
employee participation and cooperation.
But creating a so-called "open"
culture can be a nightmare, what with
government pressure to impose speech restrictions,
and employees hewing to the longstanding,
deluded presumption that a constitutional
right of free speech exists in the workplace.
It s an awfully heavy load to hoist
when you re trying to run a business.
Where do you set the bar when you re trying
to respect and encourage the free exchange
of ideas among employees, and
swim delicately among the icebergs of
statutory or common-law exceptions? And
what about the potentially inflammatory—true
believers who proselytize their religious
beliefs to co-workers, cultural outcasts
who inflict their loud, violence-mongering
music on everyone within earshot, and
corporate resisters who covertly bad-mouth
management in Internet chat rooms?
"It might be okay if an employee
comes to work wearing a Bob Dole T-shirt,"
says Bruce Barry, associate professor
of management at Vanderbilt University
in Nashville, Tennessee. "But what
if he comes to work wearing an abortion-is-murder
T-shirt? It s easy for employers to say
they have a culture of individual rights
and free expression, but it s tough to
set corporate policy around the gray areas."
Take the issue of Internet chat rooms.
Some companies have become more aggressive
about suing disgruntled employees who
post messages anonymously or who reveal
proprietary information. Certainly, employees
are entitled to air their grievances.
But such online whining sessions can leave
employers grappling with how to react
appropriately without stifling free speech.
What is protected speech?
Any HR manager at a private company
who has even once counseled an employee
victimized by a racial epithet or a sexual
innuendo knows how so-called free speech
can cause real harm, even disrupt an entire
workforce. Such "speech" can
also leave your company vulnerable to
a lawsuit. The U.S. Supreme Court, for
example, has made it clear that speech
protected on a street corner may not be
protected in the workplace. Equal Employment
Opportunity Commission guidelines state
that an employer may be held liable for
the sexually harassing acts of its non-supervisory
employees, if the employer knew, or should
have known, of the harassing conduct.
And the California Supreme Court ruled
last month that judges do not violate
First Amendment rights by prohibiting,
in advance, the use of racial slurs on
the job. The case stems from a 1993 lawsuit
in which 17 Latino employees of Avis Rent-a-Car
sued the company and its managers for
creating an abusive work environment at
its San Francisco International Airport
outlet.
Recently, at the Los Angeles-based real
estate advisory firm of Charles Lesser
& Co., several of the company s roughly
30 employees were recently overheard in
the lunchroom complaining about verbal
harassment from one particular manager.
"Lines were definitely being crossed,
and it was up to me to protect both the
company and our employees," says
Beverly Kelly, the company s human resources
manager. For Kelly, it meant determining
if a "hostile work environment"
existed, then developing a management
response.
"I went ahead and told the employees
to document their grievances in writing,
so management could take a course of action,"
says Kelly. "The next day, a formal
written reprimand went into the manager
s personnel file, and he was ordered to
attend management training courses. Everyone
s still working together, and trying to
move forward."
If you've been a human resources professional
for any length of time, you doubtless
already know that only a few forms of
workplace speech—logging a complaint
of discrimination or harassment, whistle-blowing,
union organizing—are truly protected
in the private sector. Otherwise, an "at-will"
employment relationship can be ended at
any time by either the employer or the
employee, and for any reason or for no
reason at all—subject, of course,
to statutory and common-law exceptions
or a formal employment contract.
Section 7 of the National Labor Relations
Act and the "whistle-blower"
provisions of various employment and other
protective measures loosely offer speech
protection for employees of private companies.
The NLRA grants workers the right to engage
in "concerted activities" for
the purpose of mutual aid or protection.
It provides them with a relatively safe
means of raising concerns and complaints
through their union officials, and it
allows them the right to engage in collective
bargaining, strikes, boycotts and picketing.
Under so-called "whistle-blower"
protections, a growing number of statutes
prohibit reprisals against employees who
log sexual harassment complaints, who
refuse to disobey a law when asked to,
who report illegal or harmful activity,
or who testify or assist in an investigation.
Employers are prohibited from interfering
with the exercise of these rights.
"Obviously, most employers would
rather handle these kinds of issues in-house,
but that s not always possible when the
employee wants to file a formal complaint
with a government agency," says David
C. Yamada, associate professor of law
at Suffolk University Law School in Boston,
Massachusetts. "Generally, external
reports of illegalities to enforcement
agencies are protected while internal
reports of the same activity to company
supervisors are less likely to be protected."
Employers can shield themselves from
liability and damage by devising a mechanism
to investigate complaints, says labor
attorney Wayne Hersh of Irvine, California.
On free speech issues, consistency also
is important, he says—if employees
are allowed to hang Girl Scouts posters
on their walls, then they must also be
permitted to pin up handbills for, say,
the International Brotherhood of Electrical
Workers.
"Just make sure you don t have
a written policy that denies free speech,
because then you start running into prior
restraint, which is tricky business,"
says Hersh. He also advises managers to
avoid written polices that could be construed
to mean employees enjoy unmitigated free-speech
rights. Courts in many states, it seems,
have held that assurances outlined in
employee handbooks can be enforceable
as contracts. "Some companies have
even gone so far as to revise their handbooks
so they don t get into trouble with so-called
contractual issues," he says.
Not that these realities mean much in
Corporate America. For there remains a
tremendous amount of litigation in this
country pitting the supposed rights of
individuals against the perceived rights
of employers. "Unfortunately, there
s no matrix here," says Marelene
Heyser, director of human resources and
risk management for the Orange County
Transportation Authority (OCTA) in California.
"You want to build an atmosphere
where employees can discuss their differences
with supervisors and exchange ideas with
co-workers, but you can t allow speech
that would violate a state or federal
statute."
It's estimated that roughly 10,000 employees
per year are ordered reinstated after
it s found they were discharged for engaging
in "protected activity" (union
organizing, whistle-blowing, etc.). "Just
the act of asserting one s rights, even
if wrong, might be protected," advises
attorney Peter Susser, author of Employment
Law and Practice Handbook (Sheshunoff
Information Services, 1998).
In many areas, the laws on workplace
speech are either fluid or require fine
distinctions. For instance, says New York
City-based labor attorney Steven Mitchell
Sack, author of Getting Fired (Warner
Books, 1999), an airline flight attendant
was fired recently for chatting with passengers
about her religious beliefs. "Human
resources managers should know they shouldn't
discriminate against an employee because
of her religious beliefs, but they may
be able to fire an employee for talking
about her religious beliefs to co-workers
and customers, especially if it s interfering
with work."
Of course, with freedom comes responsibility.
And here's where it gets murky for HR
managers. For with every employee who
comes to the job with the desire to communicate
openly, honestly and respectfully, someone
else arrives likely to hurl insults, racial
slurs, and sexual innuendos—speech
that ultimately undermines employee morale
and company productivity.
Employers set the bar.
Employers do not by sinister design tend
to create a culture of fear and intimidation.
And few managers would argue that everyone
needs a little "breathing room,"
especially in these days when the office
has become a place for defining and reflecting
self-identity. Yet it's also undeniable
that too much employee freedom can be
disruptive, even harmful.
Stacy Griggs is senior recruitment manager
for Philadelphia-based System One, a technology
consulting firm of roughly 300 employees
and 1,700 consultants. "A lot of
employees don t know if something s inappropriate
unless you tell them," he says. "For
example, on an annual basis we go through
sexual harassment issues—why it
s wrong, what you should and shouldn't
say—just so we know the staff s
getting the message. I can guarantee you
a lot of HR practitioners lose sleep over
these questions."
Behind every "open" culture
is the assumption that employees and managers
alike will always be reasonable. Yet from
an HR perspective, it's not that simple.
It s more about actively trying to understand
how free expression plays into your corporate
culture, and then making sure everyone
understands the ground rules. "Companies
need to temper openness with a strong
dose of reality," says Jim Weintraub,
management professor at Babson College
in Wellesley, Massachusetts. "They
need to make sure employees understand
there s a different set of guidelines
and standards in corporate life. At the
same time, companies should encourage
employees to share ideas. And there needs
to be a reward system for exhibiting those
behaviors that articulate the corporate
culture. It's the follow-up that symbolizes
to people what really happens with respect
to open communication."
|
Few
managers would argue that everyone
needs a little "breathing room."
Yet it's also undeniable that too
much employee freedom can be disruptive,
even harmful. |
|
At Irvine, California-based Freedom Communications
Inc., a national media conglomerate of
7,500 employees, management strives for
a "minimal amount of control and
a maximum amount of freedom," says
Mark Ernst, the company s vice president
of human resources. "You set the
bar at a certain level, the minimal level
of acceptable behavior. If you make racial
or sexual innuendos, you ve crossed the
bar. If you've just been jabbering all
day, you're below the bar but let s get
back to being productive."
Ronna Lichtenberg, a business and relationship
counselor and author of Work Would
Be Great if It Weren't for the People
(Hyperion, 1998), suggests HR managers
work with senior executives to display
the sort of behavior expected of company
employees. "Senior executives often
just flat get away with more in terms
of what they can say and do. You should
never let anybody get too far away from
the bell curve," she says.
And consider designing policies and
training programs for employees and managers
as a way to reinforce appropriate behaviors
and speech. At the Hoffman Estates, Illinois-based
Sears, Roebuck and Co., for example, all
300,000 associates receive a company-sponsored
"Freedoms and Obligations" brochure
that outlines the company's codes of business
conduct and leadership principles, and
sets the tone for what is or isn't appropriate
expression in the workplace. The brochure
itself is first-class all the way—heavy
and stately and beautifully laid out with
a table of contents as seemingly comprehensive
as any brochure any company would ever
want. And even though it s the finest
money can buy, the company also offers
its employees a 1-800 ethics hotline and
an electronic suggestions system. "Our
company policy is to encourage associate
expression," says John Sloan, the
company s senior vice president of human
resources. "It s a fundamental principle
tied directly to the vision of our company.
We've found that morale improves when
associates get the chance to voice their
opinions about the company and their jobs.
Otherwise, we handle everything else on
a case-by-case basis. These things emanate
from our corporate culture. And it starts
at the highest levels of the company from
the chairman on down."
One reason new employees with great
qualifications often fade so quickly is
because no one has shared with them how
to play the game, how to communicate within
the given culture. At San Francisco-based
AirTouch Communications, employees are
drilled from day one about the company
s values on ethics, integrity, customer
satisfaction, leadership, teamwork, innovation
and the ability to think and act like
owners. These values are then linked to
the performance appraisal process.
"It s not what we do, but how we
do it," says Maria Powers, the company
s director of organization development
and training. "Employees are rated
on whether they adhere to the corporate
values. We also ask for feedback during
their performance appraisals from key
internal customers—peers, people
from other departments. Clearly an issue
like free speech can bump up against,
say, sexual harassment. And if there s
an issue, we settle it by going back to
our core values, starting with respect
for people. If you can t do that, then
maybe you shouldn't be here.