L. Constitutional Protections

Employers risk potential lawsuits based upon invasion of privacy, intentional infliction of emotional distress and wrongful discharge, among other causes of action, for violations stemming from unlawful interference into an employee's personal relationships and other off-duty conduct. This section will examine areas such as employers' attempts to regulate free speech, personal appearance, relationships with co-workers, and related subjects typically protected by the U. S. Constitution.

Free Speech. Beginning in the late l960s, the United States Supreme Court ruled that government employees could not be fired in retaliation for the workers' exercise of free speech. In one leading case a teacher was fired for sending a letter to a local newspaper criticizing the school board. While acknowledging the government's need to conduct business efficiently, the court balanced the perceived harm to both parties and concluded that the basic right of free speech was more important (especially if government business was not disrupted). This and other cases came to allow public sector employees to speak out freely upon matters of public concern without fear of retaliatory dismissal. Later cases made a distinction in situations where government employees spoke out about matters of private interest (such as office morale, transfer policies within a particular department and creation of grievance committees) and ruled that the U. S. Constitution does not protect employees from dismissal on the basis of insubordination in these areas.

The notion of free speech, privacy, freedom from discharge as a result of whistleblowing and related constitutional rights has now been expanded to private employees, particularly in states which have enacted broad civil rights laws. Are there limits on freedom of expression? Can companies restrict employees' political affiliations? When does something stop being a political issue and become a rights issue? In many states a private employer cannot discipline, fail to promote or fire an employee because the company does not agree with the employee's comments on matters of public concern. Generally, even though the employer has the right to discharge employees at will without cause or notice, the enactment of special civil rights laws in these and other states protects workers who speak out freely when this activity does not substantially or materially interfere with the employee's bona fide job performance or the parties' working relation- ship. In states having such laws, companies are liable for damages caused by discipline or discharge, including costs of bringing the lawsuit.

On the other hand, decisions made by the courts and the NLRB have made it plain that there is no legal protection for activities that are (1) unrelated to working conditions, (2) flagrantly disloyal, (3) damaging to the employer's property or reputation, or (4) materially disruptive.

Counsel Comment #80: Employers should not take formal action against an employee without first researching the law of your state and speaking to counsel regarding the particular facts of each matter. Some companies overcome problems by proving the reason for a discharge was a result of legitimate business criteria such as poor performance and not bias. Avoid enunciating that the reason for discharge or discipline was annoyance with a worker's protest or comments on matters of public concern if you can demonstrate other "traditional" reasons for the action taken.

Voting Rights. A majority of states have laws that prohibit employers from influencing how their employees vote. In some states private employers may not influence the political activities, affiliations or beliefs of their employees and prohibit employers from discharging employees because of their political beliefs. State statutes differ markedly; thus never take action without first researching your state's appropriate law.

Rights Of Due Process. Generally, private employers do not have to give a hearing to employees accused of wrongdoing. However, if such a promise or right is contained in the company's policy handbook, written rules or procedures, or has been extended to others in the past, a company may have a legal obligation to allow an employee to grieve company action at an internal hearing.

Counsel Comment #81: The best way to overcome liability is to avoid making promises or giving such rights to employees in the first place. If promises have been given, be sure that they are followed accurately and uniformly to avoid charges of breach of contract or discrimination. For example, if a male employee was allowed to appeal a firing decision before a committee, be sure the same option is offered to a fired female worker.

Asserting Union Rights. The National Labor Relations Act prohibits the firing of an employee because of his or her involvement in any union activity, because of filing charges, or because of testifying pursuant to the act.

The law also protects employees who band together to protest wages, hours or unsafe working conditions. For example, under OSHA, if a group of non-union employees complain about contamin- ated drinking water, or about failure to receive minimum wages or overtime pay, your company may be prohibited from firing them under relevant state law.

Off-Duty Conduct. Attempts to regulate personal relationships and off-duty conduct of employees may subject employers to legal exposure. Disciplinary action in response to off-duty behavior that has no direct relationship to the workplace should be avoided or kept to a minimum. To protect themselves in this area, employers must:

1. Demonstrate a legitimate business need;
2. Communicate reasonable policies in company handbooks, memos or other written documents; and
3. Warn employees as to what constitutes objectionable conduct and the penalties for committing violations of stated company policy. Certainly, at a minimum, the regulations or policies enunciated must comply with your state's civil rights laws, must be consistent with other company policies, and cannot violate discrimination statutes in the process.

TIP: Does management have the right to actively enforce a non-fraternization rule aimed at curbing interoffice romances? Some courts have upheld the dismissal of employees romantically involved with co-workers. A Wisconsin court ruled that there were no constitutional or statutory rights barring such a dismissal. The court upheld an employer's decision to fire an employee whose relationship with a co-worker had created insubordination. Similarly, a U.S. District Court found no violation of public policy in dismissing an employee for his relationship with a subordinate. In another case, termination because of marriage to the employee of a competitor was found not to violate public policy and a terminated worker's abusive discharge lawsuit was rejected.

Counsel Comment #82: The chances of your company prevailing in this area are enhanced when employees are advised of a policy in writing and given advance warning of the possible consequences. A policy with a legitimate rationale, and applied uniformly, stands a better chance of a favorable court ruling.

For off-the-job illegal conduct, a company typically has the right to fire a worker if the illegal conduct harms the employer's reputation or has a negative impact on job performance. A more prudent course of action, however, may be to suspend the worker without pay pending a conviction on the criminal charges, just to be safe.

The law is not so clear regarding attempts to regulate legal off-the-job behavior. Some cases have given employers the right to bar employees from cohabiting with persons who work for a competitor.

Counsel Comment #83: Before taking any action in this area, investigate the matter fully. Give the individual accused of a company policy violation the opportunity to explain the facts or to offer mitigating reasons justifying his/her acts or conduct. The employee's position in the company, the kind of acts committed, possible damage to the employer's reputation (an important concern if the company is located in a small community) and the justification to enforce such a policy are all factors that should be considered before making any final decision. Consult with counsel and research the application of your state's laws before making any decision.

No Solicitation Or Distribution Rules. Many companies prohibit employees from soliciting or distributing literature or other items. Typically, such policies are legal provided the company enunciates the policy in writing and applies it consistently. One company hand- book states its policy as follows:

"To prevent disruptions of Company business and harassment of Company personnel, Employees may not:

• Engage in soliciting donations or contributions;

• Sell chances, raffle tickets, services, or merchandise;

• Distribute merchandise or literature of any kind on company property during working hours. This includes.findlaw soliciting or distributing literature to non-employees or visitors at any time.

"Under no circumstances may non-employees be allowed to distribute literature or solicit employees on company premises. Breaking any of these rules is considered serious misconduct and may be grounds for immediate discharge."

Tip: A few companies allow employees to solicit or distribute literature during "non-working" hours e.g., those periods, such as mealtimes, when they are not engaged in performing their work tasks and are away from designated working areas. In addition, you may wish to consider permitting certain select activities such as U.S. Savings Bonds or blood drives.

Personal Appearance. Some companies prescribe standards in dress and personal appearance. At times, certain dress and personal appearance (e.g., no long hair) codes have been attacked as being either discriminatory or as violating a person's rights of privacy.

In many situations, arbitrators and judges will uphold a company's personal appearance policy provided it is reasonable and justifiable. For example, requiring firefighters to be clean shaven has been upheld in some counties. However, one company's no-beard policy was held to be racially discriminatory. After being told about the company's no-beard policy, the worker explained that he wore the beard because he suffered from a skin condition peculiar to many black males which made him unable to shave. The company told him it made no exceptions and the man was eventually fired. He then filed a race discrimination charge with the federal Equal Employment Opportunity Commission. The U.S. Court of Appeals held that the company's no-beard policy effectively operated to exclude those black males from employment.

NOTE: The court noted that the mere fact that a black male employee suffers from PFB is not sufficient to exempt him from the no-beard policy; only those who suffer greatly and cannot shave are protected.

TIP: Good grooming regulations reflect a company's policy in highly competitive business environments. Reasonable requirements in furtherance of that policy are one aspect of managerial responsibility and may not constitute an invasion of a person's privacy if challenged, particularly if the company disseminated written rules advising workers of the consequences flowing from violations of such policies.

Counsel Comment #84: Since the law varies by state and depends on each set of facts, do not impose personal appearance and dress standards without first obtaining counsel's blessing. While employers typically possess protec- tion for dress and grooming codes, be careful that your company is not committing sex or sexual orientation discrim- ination in the process. For example, if a job applicant wearing an earring is rejected because the interviewer believes the applicant is gay, the applicant might have recourse in many states and cities which prohibit discrimination based on sexual orientation.

Private Phone Numbers. Typically, it is not an invasion of privacy for an employer to demand an employee's phone number, even if that number is unlisted since employees can be required to be accessible by telephone when away from work. In one case, an arbitrator upheld a company which suspended an employee for refusing to accept telephone calls directed to him at a vacation resort while he was on vacation.

Identification Cards. Does management have a right to compel its employees to carry identification cards? Although some workers have refused to do so, considering such a policy to be an infringement of a worker's right to privacy (particularly when the cards contain a worker's Social Security number and birth date for everyone to see), arbitrators have ruled that an I.D. card-policy can be necessary as a legitimate business interest when it is reasonably designed to meet the employer's needs for security and administrative purposes. In fact, the right to require employees to possess I.D. cards bearing confidential data does not have to be negotiated with a union since this is a right that a company generally possesses. However, a distinction may be made if the company requires employees to wear their surnames on their outer clothing. Ruling against such a policy, an arbitrator in one case said, "The surname display constantly evidences itself even in those situations where personal identification is not required. It exposes the employee to those more dangerous situations when, in all common sense, the employee would not proffer his/her I.D. card."

Restroom Visits. Workers generally do not have rights of privacy to stay in restrooms for extended, unreasonable periods of time, particularly after being warned of such excessive respites and when the restroom visits are not medically related. However, if a medical condition justifies numerous trips to the bathroom (not for smoking or chatting), it may be wise to avoid disciplining or terminating a worker without further investigation and careful planning in light of the increased protections and reasonable accommodation requirements afforded to covered employees under the ADA.

Informants. Are company policies designed to encourage workers to inform on drug or alcohol abusers legal?

In one case, the NLRB ruled that the "informer" rule was valid. After noting that both management and the union agreed on the need to combat drug abuse, the referee decided that the basic premise of a drug-free atmosphere was vital and involved no violations of privacy.

TIP: Generally, an employee is under no ordinary obligation to divulge information on a co-worker.