Question

We have an employee who thinks he is a constitutional scholar. He is quick to challenge any policy we put in place that he perceives as infringing on his “constitutional” rights. We are getting tired of hearing from him. Does he really have all these constitutional rights? Do we have any options?

Answer

While some employees are quick to claim that certain protections established in the Constitution apply to their private-sector workplace, with limited exceptions, they do not.

First Amendment – Freedom of Speech

The legal protections for freedom of speech in the Constitution apply to speech by private individuals directed toward the government. Individuals may speak out against a politician, a public policy or other action of the government and receive the benefit of the First Amendment freedom of speech protection.

The law does not provide the employee with the right to debate the actions or policies of an employer. The Constitution does not carry much weight inside the four walls of a private workplace.

This means that a private-sector employer may take disciplinary action against an employee because of what the employee says, provided certain conditions are met. Specifically, the employer must treat its employees in a consistent and non-discriminatory manner regarding discipline for speech-related violations of company policy.

There are some important legal protections for certain forms of speech in the workplace. An employer may not discipline employees for engaging in concerted activity regarding the terms and conditions of their employment (see National Labor Relations Act), nor can they discipline employees for engaging in protected opposition to discrimination or harassment (see Title VII of the Civil Rights Act).

You need not tolerate so-called constitutional challenges to workplace policies.  The key to rebutting the employee is consistency. Notifying employees in advance through well-drafted policies of your expectations should limit the number of instances of polarizing speech in the workplace and will provide protection from wrongful discharge suits claiming disparate treatment.

Second Amendment – Right to Bear Arms

Guns or no guns in the workplace? Federal law is clear. Employers have a legal duty to keep employees safe at work. Under the federal Occupational Safety and Health Act (OSH Act), employers may be held liable for gun-related injuries or fatalities at the workplace. In addition, employers are covered by workers’ compensation insurance for workers injured or killed by gun violence at the workplace.

The Second Amendment does not give individuals the right to carry a gun into a private workplace. This is true, notwithstanding a recent U. S. Supreme Court decision recognizing a constitutional right for citizens to carry a firearm outside the home for self-defense. While that decision overturned gun licensing requirements for concealed-carry permits in Massachusetts and other states, the decision does not allow employees to bring guns to work.

Given the recent surge in gun ownership, employers may wish to review their policies and consider whether changes or additions are needed. Keep in mind that the goal should be to protect the safety of all employees and customers.

AIM members who operate in multiple jurisdictions should research state and local law for restrictions on gun ownership, storage, and use. For example, many states allow guns to be brought into a company parking lot if the gun is kept in a locked personal vehicle. Some states prohibit employers from firing or taking adverse employment actions against employees for keeping a gun in a locked personal vehicle. Obviously, companies can ban guns from company vehicles.

Fourth Amendment – Private-Sector Workplace Searches

Does the Constitution’s Fourth Amendment banning unlawful searches and seizures reach into your company? While few employees would welcome a search of their workstation or office without their consent, the reality is the law offers little protection from searches by employers or law enforcement unless the search is clearly unreasonable. Employers do not need a warrant to search facilities within the workplace such as computers or work areas.

Although the Fourth Amendment does not apply to businesses, private-sector employees may still be able to make a common law claim of invasion of privacy in state court.

If an employer provides an employee with a locker with a lock and a key, the employee could claim to have a good reason to think of the locker as private space at work. In such a case, an employee could reasonably believe that the locker was protected from arbitrary employer searches. Of course, an employer can address this issue by stating in a clear policy that it reserves the right to search areas at work such as lockers and workstations, thereby eliminating the employee’s expectation of privacy.

If the employer has reasonable suspicion of misconduct, the employer may be able to conduct a workplace search without raising any legal challenges. While a random search of employee work areas is more likely to be considered unreasonable, if the employer searches a work area after receiving a reliable tip that it can expect to find evidence of misconduct in a specific place the employer will have a much stronger defense in any litigation.

Employers can conduct non-intrusive searches if they have evidence of illegal drugs, weapons or alcohol on the premises. If challenged by the employee, the courts will likely look to the circumstances surrounding the specific case. Private employers are generally allowed to search any common work area under the company’s authority without needing any evidence of wrongdoing; however, having a documented basis for its reasonable suspicion will help minimize the risk in court.

Employers can and should establish rules and boundaries on conduct in the workplace and make sure that employees know those rules via the company handbook. Companies will always benefit from having clear easily understood and uniformly enforced policies to minimize the risk of any sort of challenge.

Members with questions about this or any other human resources matter may reach out to the AIM Employer Hotline at 800-470-6277.