Employee communication freedoms

To what extent can an employer limit what an employee says at the workplace?

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Various laws, including the National Labor Relations Act, protect certain employee speech and expression at work. Also, language restrictions may run afoul of discrimination laws. Here are some common situations in which employers must be careful in restricting employee expression.

  1. Discussion of pay or work conditions
    The NLRA protects employees’ right to discuss the terms and conditions of their employment with co-workers. Moreover the California Labor Code prohibits employers from restricting employees from discussing their wages (including bonuses or other forms of compensation) or working conditions. Although such discussions may harm employee morale and create disruption, employers cannot restrict such communications. However, an employee may be disciplined for improperly obtaining an unauthorized disclosure of another employee’s wage or other confidential personnel information.
  2. Conversation in alternate language (e.g., English-only rules)
    Under both State and Federal law, blanket English-only requirements are prohibited as a form of national origin discrimination and enforcement of such requirements may be considered a form of unlawful harassment. Employers may only require employees to speak language at work in situations where there is a legitimate business reason for doing so, such as situations involving customer interaction, as needed for a supervisor to monitor employee work, and as needed to ensure safety. Employers should also provide reasonable notice of any such restrictions to employees through a carefully-written policy. Clearly, requiring employees to speak English during meal and rest breaks or other off-duty times is prohibited.
  3. Employee discussions about politics
    We have all experienced that discussing politics can lead to contentious and disruptive conversations that employers may want to quell at the workplace. Private employers have more latitude than government employers to restrict political speech at the workplace, and may place reasonable restrictions on such topics in order to ensure a peaceful work environment. Employers may also prohibit employees from broaching political topics with customers or vendors. However, such restrictions may not infringe on an employee’s otherwise protected rights to discuss pay and working conditions (as mentioned above) or to voice complaints or concerns about otherwise protected topics, such as harassment/discrimination or other reports that could trigger whistleblower retaliation protection. Moreover, in California, employers are prohibited from taking adverse action against employees for the employees’ legal off-duty political activities. Specifically, under the Labor Code an employer may not “coerce or influence or attempt to coerce or influence” employees through threat of termination “to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.” Employers who want to place restrictions on employee political discussions at work should adopt a carefully-drafted policy setting forth acceptable and unacceptable conduct while avoiding prohibitions against otherwise protected activity.