Businesses Impeding Free Speech Rights in the Workplace

By Dmitri Iglitzin and Steven Hill

The First Amendment to the U.S. Constitution guarantees not only the freedom to speak but also the freedom not to listen. The U.S. Supreme Court has recognized that "no one has a right to press even good ideas on an unwilling recipient." Nevertheless, American businesses are increasingly violating what should be the acknowledged free speech rights of their employees.

Frito-Lay Inc., one of the world's largest producers of snack foods, is also one of the country's worst abusers of its employees' right not to listen. It routinely not only compels its employees to listen to anti-union diatribes, on company time and property, but also forces its drivers to allow anti-union advocates to accompany them on their routes, requiring the captive drivers to listen to their anti-union speech.

Frito-Lay sugarcoats what it is doing by portraying this as merely "communicating" with its employees, i.e. exercising its own free speech rights. But an Aug. 6, 2007 letter, which was sent to several hundred Teamster-represented employees in Washington state informing them of Frito-Lay's impending effort to oust the union, had menacing undertones: "We will probably use several methods of communication over the next few weeks, including employee meetings, letters, route rides, and individual discussions." Left unstated, but nonetheless crystal clear to employees, was that listening to these "communications" would not be voluntary. To the contrary, any refusal by an employee to participate in such communications -- wherever, whenever and for however long the company wished -- would be grounds for discharge.

Unfortunately this kind of behavior is not unique to Frito-Lay. Many American companies take advantage of the intrinsic vulnerability of their employees at the workplace. A report for the federal government, based on a study of more than 400 union representation election campaigns, found that during 92 percent of union organizing drives, employers forced their employees to attend closed door anti-union meetings. In addition, 78 percent of employers directed supervisors to deliver anti-union messages to employees in one-on-one meetings.

Not surprisingly, employers have never seen fit to grant union representatives the same equal right to address employees. And nothing in federal law requires companies to allow labor representatives onto the employer's property to speak to workers, even if just to give an alternative view to the employer's anti-union speech.

So in many American work sites today, not only are workers' free speech rights being violated on a regular basis, but there's also no free market of ideas. Instead there exists a communication monopoly where workers are subjected to Soviet-like conditions, indoctrinated into the employer's anti-union credo and relentlessly harassed by their employers.

To counter this, a nationwide campaign has been launched to win basic free speech rights for workers. A proposed law, titled the Worker Freedom Act, would make it illegal for an employer to require workers to sit through meetings while the employer lectures on religious or political beliefs, including beliefs about joining a union. This law would not prohibit employers from sharing their opinions with their employees, but it would grant the employees the right to walk away.

The WFA has been introduced into numerous state legislatures and the Michigan, New Hampshire and Oregon houses of representatives all have passed it. It was passed by the Colorado Legislature in 2006 before being vetoed by the governor. Clearly, a lot of people agree with the U.S. Supreme Court that there is a compelling need to "protect listeners from unwanted communication." Whether in situations such as children in school or passengers on a bus, the court wrote that "the First Amendment permits the government to prohibit offensive speech as intrusive when the 'captive' audience cannot avoid the objectionable speech."

If "captive speech" is not permitted to be imposed on students in school, why should it be imposed on workers at their jobs? Should American workers have to forfeit their First Amendment-type freedoms whenever they show up to work?

Free speech is as American as apple pie, so it seems oddly un-American that in the 21st century American workers don't enjoy basic free speech rights in the workplace. The current momentum in favor of the Worker Freedom Act suggests that Americans recognize it is simply wrong that working Americans are denied this basic right. It's past time to support legislation that will give workers and worker representatives free speech rights in the workplace.

[Dmitri Iglitzin is a labor law attorney in Seattle. Steven Hill is political reform director at the New America Foundation and author of "10 Steps to Repair American Democracy" (www.10steps.net).]

Comments

[zeldaM]

How 'bout this one - I've been hearing lately of employers that won't promote qualified people if they are renters. They want to make sure people are wage slaves. I've even heard of places that won't hire renters - don't want someone who isn't desperate to get and keep a job. Maybe if fewer people fell for the blame the bottom or divide and conquer, we could get the masses to focus long enough to recognize it's da fat boys at the top that rig the game. While everyone is whining about illegals and the poor, who is it that's really ripping off the middle class, who is it that's really raking it in, who is it that really games the system?

[SD61]

American corporations have essentially thrown in the towel on American workers, even though our government literally preaches flag-waving nationalism at every opportunity, to ensure that their imperialistic guns remain cocked and loaded (our military, in other words). The wealthy will not suffer during America's globalization/annealing process, but you and I will.

"Look out kid, dont matter what you did
Walk on your tip toes, dont try no doz
Better stay away from those
That carry around a fire hose
Keep a clean nose, watch the plain clothes
You dont need a weather man
To know which way the wind blows..."

Bob Dylan

[oogabooga]

A whole bunch of pressure groups, employers, rightist nutcases, etc hate freedom of speech. That's why it's in the Constitution.

[KenMilloy]

I am going to take a somewhat different approach to this conversation from al of the other posts submitted - this perhaps because I am a Canadian where laws prohit the type of communication described in your article and because I work as a consultant in the field of internal communications.

As a starting point I am surprised that a communication program such as you described has been implemented in any company - it simply goes against any form of logic given the current imperative to engage employees rather than disengage them.

From an effectiveness point of view and a business performance point of view Frito Lay and others would be well advised to shift their strategy. By implementing communications which serve to build understanding of the business strategy, goals and objectives and to help staff make the connection between their role and the business, by involving people in planning and decision making and so on, I would guarantee that bottom line performance would improve.

In one instance we worked with a client where the management / union relationship could best be described as non-existent. Issues were extreme and the number of grievances being raised well above the norm. Following the implementation of some significant changes to what was communicated to / with staff and how the communications was done, we were able to measure a 76% reduction in grievances. The cost savings in terms of both time and dollars associated with that improvement - literally into the millions.

Furthermore, if Frito Lay (and others you suggest that act as they do) focused on creating a workplace culture within which all staff were treated appropriately and respected as people, whatever issues they may have with unionized staff would likely disappear. In fact, if they had done this from the start the likelihood of a union ever entering the firm would have been minimal.

I'll leave the constitutional debate to others and get on with helping companies build cultures that staff like being a part of, where customer expectations are more than met and where leaders see a much bigger picture.

Ken
www.strategicconnections.com

[NABNYC]

It's an interesting question, but not really so much a constitutional issue. The first amendment only prohibits congress from Congress passing laws abirdging the freedom of speech. It says nothing about whether an employer can prohibit freedom of speech in the workplace.

When employers are multinational, but employees of necessity are always local, then employees have little power to protect themselves. After all, if they walk out the company can just shut down that facility and move it elsewhere.

That's why we need politicians to pass a workers' bill of rights to apply to all working people in this country. The first part of the law should put an end to the conservative-created doctrine of "employment at will" which allows companies to fire employees for arbitrary and petty reasons. It should be replaced with a legal presumption of the right to continued employment.

The law also should include a truly livable minimum wage, maximum hours, breaks, overtime, freedom of speech, vacations, sick leave. It should include the right of employees to select a union to represent all or some of their members.

Any company that has a "message" to deliver to its employees should be prohibited from doing so during working hours, except if the message is limited to information about working conditions, hours, health and safety issues.

But we need politicians in Congress to finally begin standing up for the working people of this country. Without that, we get their meaningless support (Hillary supports the rights of workers to try to organize a union -- thanks for not very much) at a time when local working people simply do not have the power to stand up against the multinational corporations.

[jalowe1957]

And since we're on the subject of free speech in the workplace, here is a doozie from the set of the NBC "reality" (if that's the word) show, "American Gladiators."

An audience member had a sign confiscated by a production staff member, saying "We can't have you holding that sign," without any logical explainiation as to why. The sign in question had the statement, "If you fall, who'll be there to collect you?"

The audience member responded by quietly getting out of his seat on his own accord a few minutes later and walking off the set altogether.

Sure we have free speech...except if it's something the powers that be doesn't want to hear.

Deafening, isn't it?

[Oldchef]

As a senior supervisor (hotel Executive Chef) I was required by one employer to meet regularly with my staff during a union push to counter the union's message. The organizers and all supervisors who did not push the anti-union message were dismissed after the union vote failed. I was replaced a couple months later with a chef from another state. As a local, I was too friendly with the staff to suit the management company once the union effort was defeated.

[Atticus]

Speaking of rights and freedoms, the employee always has the right and freedom to quit.

[sparkandy]

Surprise, suprise! Large corporations treat their workers like serfs, deciding for them what is best. The truth is any corporation with a CEO and his/her minions thinks of employees as a drain on the bottom line. Where I work, we are constantly barraged with training on customer service, which is absurd, because the only place the customer ever got any good service was from the front line employees anyway. The top tier in the company think of the passengers as cattle, to be herded into planes and gotten rid of as quickly as possible, after extracting the most money possible. The geniuses at the top rolled out a new reservation system that doesn't work for the customers or the res agents, because the CEO's husband is the CEO of that booking engine's company. The customers are infuriated because the system is totally unworkable, and they have every right to be. And the ones who are forced by the company into endless meetings about customer service are the ones who actually care about the passengers and try to help, not the ones who made the mess in the first place.

[realitytrumpsbull]

Why can't they just roboticize their production?
If they don't want union, hire Aibo...

[Nommo]

Bet y'all can't stop eating just one...
Just stop buying their crap.