Full Text: Open Debate

Bruce Barry

Professor, Vanderbilt University; author, Speechless: The Erosion of Free Expression in the American Workplace.

Ermis Sfakiyanudis

CEO, eTelemetry, whose hardware and software lets companies monitor employees' email and Internet usage

Is freedom of expression unconditional? What happens when employers attempt to limit that freedom in the workplace?

Barry: Americans cherish free speech as a birthright. Employers cherish the freedom to manage their workforce as they please. I’m concerned about what happens when these two freedoms collide. Most employers don’t think of themselves as a threat to freedom of expression, much less to the health of democracy, when they make personnel decisions. But that’s what’s at stake when employers punish workers for expressing themselves on and off the job. I won’t argue that a workplace should be a free-speech zone where anything goes, but I am troubled by a legal system that gives employers such broad discretion to suppress workers’ expressive activity, both at work and after work, with impunity. Relentless pressures to protect brands, cope with uncertain markets, and maximize financial results lead many firms to be reflexively suspicious of otherwise harmless worker speech. And it takes just one employee canned for blogging or politics or community activism to chill everyone else into defensive silence. Some would say gee, that’s a shame, but work is work, so do your free speech on your own time. I say that work is where many adults develop the ties that build and bind communities. Free speech rights at work therefore matter for advancing citizenship in a free society.

Sfakiyanudis: As a naturalized citizen, I also love to stand on top of democracy mountain waving the free speech flag. As an employer though, it comes down to time and place. For most companies, mine included, payroll is the largest recurring expense. In today’s world, employers recognize that the demand on an employee to put in more time at the office and to spend more of their life behind the corporate walls requires them to be a bit more flexible with regard to web browsing, online shopping, and communicating with friends and coworkers via instant message systems. However, when an employee takes advantage of this flexibility and exceeds an acceptable use threshold on company time, the entire enterprise suffers. Building ties with coworkers and limiting personal activities during work hours do not have to be mutually exclusive.

Barry: Ermis, you articulate what feels on the surface like moderation: employers ought to be flexible in controlling employee communication, while employees should respect reasonable limits on personal activities during work hours or expect consequences. But this seemingly sensible balance masks difficult choices – and potential hazards for employee rights – at the margins. If the only issues were recreational browsing and online shopping, then it wouldn’t be all that hard to strike a reasonable middle ground, and many smart employers are already doing that, no question. But the hard problems involve political and religious speech, community activism, and professional identity, not online shopping. Many employers are too quick to become apprehensive that expressive activity by employees might affect a firm’s image or success. Certainly employers have the right to worry about these things, and to act when workers abuse company resources. Employers should not, however, be able to compel workers to forfeit the freedom to associate and to communicate freely about their professional or political lives as a condition of job security.

Sfakiyanudis: I agree with you that the right to express one’s political and religious views outside of the workplace is the right of all Americans. But your position that employers are “too quick” to react to employee expression minimizes the pressure on employers to meet today’s compliance and regulatory standards. Your statements imply that it should be acceptable for an employee to post to a blog from the corporate network expressing a personal position, or to send an email from the company network exercising their freedom of speech. The problem with that in today’s world is that all those postings and emails can be traced back to the company, and it could be misinterpreted that the employee’s position is endorsed by the employer. This creates a huge liability for the company. I think corporate image or the success of the firm have far less to do with establishing corporate policy on acceptable forms of communication and far more to do with the increased scrutiny and liability that employers face by not implementing the proper controls.