Monthly Archives: September 2014

Freedom of Speech at Work–Not So Much

Sam Pharmacist is excited.  He has no doubt that 2016 is the year for Hillary Clinton.  To help do his part in electing her, he puts up a couple of “HILLARY 2016” posters and bumper stickers at the pharmacy where he is employed. 

Sam’s boss sees the signs and tells Sam to take them down—they are not allowed at work.  Sam complies but tells his boss that this is a violation of his First Amendment freedom of speech right.  He calls me the next day.

To his dismay, I tell him the signs must remain down.

Congress shall make no law … abridging the freedom of speech.  The First Amendment, Constitution of the United States of America.

The first thing we all remember from high school civics is that while Congress may not enact any laws abridging freedom of speech, the government may still do so.  Speech is not protected, Justice Holmes held, where there exists “a clear and present danger.”  Decades later, SCOTUS revised Holmes’ standard to limiting speech when such speech indicates “imminent danger of imminent harm.”  In both cases, SCOTUS used the example that a person may not yell “Fire!” in a crowded theater when that person knows there is no fire.

The second thing we all learned is that employers may restrict the use of free speech by their employees.  Employees may contract away their Constitutional rights.  Thus, an employment contract may limit what an employee can say about proprietary and trade secrets, pricing structures, internal policies, and limit contact with clients/customers once employment has been terminated.  Further, courts have long held that employers have an “implied contract” that limits employees from saying and doing certain activities that might, directly or indirectly, result in harm to the employer.

Thus, in the example above, boss may see economic harm from this pharmacy having “Hillary 2016” signs.  Boss may see harm from losing customers who hold different political beliefs or opinions.  Interestingly, though this is a constitutional right, courts usually hold that the harm need only be minimal or nominal for employer to be able to limit an employee’s freedom of speech.  In instances like Sam above, these courts hold that these employees have other ample opportunity to express their views.

Basically, anything said about the employer that the employer can interpret as harmful to the employer is actionable by the employer.

The recent focus on freedom of speech in pharmacy has been the policies put in place limiting employees’ right to freedom of speech on social media.  I shall say it: these policies are overly broad and overly restrictive on employees.  Right off, I say these policies are unnecessary; what you have read above shows that employers already have a more than adequate basis for acting against any kind of “free speech” that directly or indirectly may result in harm.

Most pharmacists list their place of employment on social media as a point of pride.  But after a bad day, or a hellacious customer, cutbacks in tech hours, etc, do not think of griping on Facebook or other social media.  This is now and has been used as a basis for termination.

What can you do?  First, remove the name of your employer on social media.  (What you take as a point of pride your employer considers a weapon against you, anyway.)  Second, gripe all you want about “work” but simply do not name your employer.  (“Work was sh**ty today!  How can I be expected to do all this after losing 20% of my tech hours?”)  This removes the basis for action against you.

 

While we are on social media, let me give another warning about what you post.  Last year, I was in Texas for a case.  In it, a pharmacy tech had posted “I’m a drug dealer” on social media and opposing lawyers were making a lot of it.  Posted in jest?  Pretty sure it was, but in light of other incriminating evidence more than reasonable doubt was raised.

In short, if you are sued or prosecuted by the courts or the Board, they will look at your social media sight.  I have long advised pharmacist to leave off posts regarding alcohol or drug (legitimate or otherwise) use.  I have now seen posts about drinking used against three pharmacists to place doubt to juries as to the pharmacist’s state of being while on duty.  All three pharmacists lost their cases, and I have little doubt these posts made a substantial contribution to the jury’s decision.  Post about you children, your vacation, your church, whatever.  Leave alcohol and drugs off social media, no matter how innocuous or fun you might consider the posts to be.

Freedom of speech in the workplace is nowhere near as liberal as many would like to think.  Employers push the envelope on restrictions and use overly aggressive policies to protect themselves against harm.  Pharmacists need to be wise to what they can and cannot say these days.  Your career might depend on it.

 

For a totally different take on another aspect of freedom of speech/ expression, I refer you to my article “Tattoos and Piercings at Work,” The Kentucky Pharmacist, Vol 9, No. 3, May 2014.