Questions and Answers on Speech in the Workplace
An Explanatory Statement of the ALA Code of Ethics
Since libraries have a special responsibility to protect intellectual freedom and freedom of expression, do libraries have a special responsibility to be workplaces that tolerate employee expression more than other professional settings?
Yes. Libraries play a special role in ensuring the free flow of information in a democratic society. Librarians and library workers are often called on to fight censorship and resist efforts to restrict individuals from receiving information and expressing ideas. If librarians and library workers are denied the ability to speak on work related matters, what does this say about our own commitment to free speech? We need to demonstrate our commitment to free speech by encouraging it in the workplace. Libraries are encouraged to adopt ALA policy B.9.21 on Workplace Speech. This does not provide full legal protection for employees but does help promote free speech in the workplace.
Is there an ethical obligation to raise questions and initiate change about policies I believe to be detrimental to the public interest or to the profession?
Does the First Amendment apply to workplace speech?
Through the Library Bill of Rights and its Interpretations, the American Library Association supports freedom of expression and the First Amendment in the strongest possible terms. The freedom of expression guaranteed by the First Amendment, however, has traditionally not been thought to apply to employee speech in the workplace. The doctrine of “employment at will” (applicable in most states) has meant that just as employees may resign at any time, so too may employers dismiss employees at any time unless the dismissal is for prohibited reasons (e.g. racial or age discrimination). Some employers may believe that if employees were given full rights to free speech on work related issues, loyalty and discipline would be weakened and the coordination needed for the effective and efficient functioning of bureaucracies would dissolve.
Does this mean I have no free speech rights as an employee?
Because the First Amendment only protects individuals against government infringements upon free speech rights, First Amendment protections for speech activities in the workplace are generally not available to employees of private companies or institutions. As one court explained, "the First Amendment free speech provision fails to establish public policy against terminations by private employers for speech-related activities because this provision applies only to government actions and expresses no public policy regarding terminations by private employers." Grinzi v. San Diego Hospice Corp., 120 Cal. App. 4th 72, 79 (2004); see also George v. Pacific-CSC Work Furlough, 91 F.3d 1227 (1996).
If you are a government employee, your speech activities in the workplace may enjoy limited protection under the First Amendment. In Pickering v. Board of Ed., 391 U.S. 563 (1968) the Supreme Court crafted a balancing test intended to protect the constitutional rights of an employee speaking as a citizen on matters of public concern while preserving the government employer's interest in ensuring that its employees do not undermine its operations or interfere with accomplishment of its objectives. In brief, if your speech addresses a matter of public concern, and it does not interfere with your employer's ability to provide public services or impair discipline or harmony in the workplace, the courts may side with you. Note, however, that the courts often give great deference to an employer's conclusion that an employee's speech has been disruptive or damaging.
In 2006, the Supreme Court clarified its decision in Pickering. In Garcetti v. Ceballos, 547 U.S. 410 (2006), the Supreme Court held that public employees who make statements pursuant to their official duties are not speaking as citizens for First Amendment purposes and may be disciplined by their employer for that speech.
What about whistle blowing?
According to Black’s Law Dictionary, whistle blowing refers to an employee who reports illegal or wrongful activities of an employer or fellow employees. There are federal and state statutes to protect employees from retaliation for disclosing certain kinds of employer misconduct, like fraud, abuse, waste, or the violation of a law, rule, or regulation. Legal counsel can advise you if these statutes apply to your situation.
What about questions of library policy? Do I have free speech rights to speak on internal library matters?
Since the relationship between employee and employer is a contractual one, employee speech is governed by the employment contract, not the First Amendment. The speech environment in a library as a workplace may vary according to the organizational hierarchy and an employee’s place in it, the organizational culture, and the personalities that make up that culture. If you are a member of a union, check your union contract to see if it offers any protection. If you are a librarian who has tenure or an arrangement similar to tenure, check your tenure or reappointment documents.
What are some issues to consider when speaking out on a library policy matter?
Try to know all the facts on the issue and attempt to understand it from your employer’s point of view. Is the issue important enough to you to risk retribution? Assess your place in the hierarchy and know your workplace culture: you may have more job security than you think. If you are in a union you may be protected by your union contract. A tenured librarian may have more freedom to speak out than a new librarian. Library directors may be expected to make their views known to their trustees. Your boss may be more receptive to criticism at certain times than others. Some bosses may be open to disagreement in private but not in staff meetings. Some may prefer a verbal conversation to a written memo. Consult with your colleagues. Do your colleagues agree with you or are you alone? Can you build support among your colleagues for your position? Can you get others to raise the issue for you or can you do so anonymously? Will it be possible to work from within for change? If your convictions are strong enough, are you willing to resign? You will have to exercise your own professional judgment in assessing your workplace environment.
As a library administrator should I solicit the opinions of my staff on policy and procedural matters?
Article V of the Code of Ethics states, “we treat co-workers and other colleagues with respect, fairness and good faith, and advocate conditions of employment that safeguard the rights and welfare of all employees of our institutions.” Article VIII states, “we strive for excellence in the profession by … encouraging the professional development of co-workers… .” Library professionals in leadership positions should encourage discussion on policy and procedural matters and adopt ALA Policy B.9.21 on Workplace Speech.
If I speak out in the workplace on a matter of professional policy, and my employer retaliates against me, will the ALA support me?
The ALA does not provide mediation, financial aid, or legal aid in response to workplace disputes (please see the Questions and Answers on the Enforcement of the Code of Ethics of the American Library Association for a history of past efforts related to mediation). Your employer has an array of sanctions that may or may not be imposed on you, including but not limited to: reassignment, passing you up for promotion, passing you up for raises, denying you tenure, passing you up for the best assignments, and ultimately dismissal. If you decide to speak out on a matter involving professional policy, it will be a matter between you and your employer. The ALA does administer the LeRoy C. Merritt Humanitarian Fund, which has provided financial assistance for librarians who have been discriminated against or denied employment rights because of their defense of intellectual freedom including freedom of speech. More information on the fund can be found at www.merrittfund.org. Some state library associations offer professional liability insurance for members that can help with reimbursement of legal fees related to termination. Check with your state association to see if this is available to you.
Can I be disciplined for workplace-related comments on Facebook and Twitter?
In a number of recent decisions, the National Labor Relations Board has ruled that employers cannot discipline employees for certain work-related conversations conducted on social media, such as Facebook and Twitter. In each case, the NLRB found that employees' posted comments about their workplace were "protected concerted activity" under the National Labor Relations Act because the employees were engaged in conversations discussing the terms and conditions of their employment. Such protections are limited, however, and do not extend to posts or conversations that are unrelated to workplace conditions.
Where can I find more information?
Questions about “Speech in the Workplace” can be directed to the Committee on Professional Ethics c/o the ALA Office of Intellectual Freedom by phone at (312) 280-4223 or by email at email@example.com.
Please note that these answers are not a legal opinion nor should they be regarded as legal advice. Please consult legal counsel for legal advice regarding your particular situation.
National Whistleblowers' Center
The Whistleblowers' Protection Program
The NLRB and Social Media
Garcetti's Impact on the First Amendment Speech Rights of Federal Employees
Adopted July 2001; Amended January 2004, June 26, 2006, January 24, 2007, July 1, 2013.