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Sep07

Free Speech Rights vs. Workplace Threats

Every workplace in our area is paying more and more attention to issues of workplace violence. Our town has even recently hosted a meeting to make suggestions about how to detect and handle workplace violence. However, I’m wondering if a policy that makes certain words, phrases and other forms of speech restricted is violating our employees rights’ to free speech. What is a good way to balance the two?

It’s good of you to think about your employees’ rights as well as ways to protect them while at work. And yes, drawing a line between free speech and protecting your employees from threats can be a challenge. As far as the courts are concerned, if you punish an employee or accuse an employee of being threatening, then you will need to explain, with evidence, that the employee was being threatening and that he or she could reasonably do harm to another employee.

In general, the court will decide that a person has used threatening speech if the speech or the threat would offend or give a reasonable person reason to believe that the accused intended harm. If the court does not believe that the person truly would act upon a threat, then the court will dismiss the case.

As far as the courts go, private sector employers usually have more freedom than public sector employers. When you are in the private sector, you can write policies that can either be more specific about what speech will not be tolerated, or you can prohibit the use of certain words altogether, which you cannot do as easily in the public sector, which is more closely guarded by the Constitution.

For example, many private sector policies will prohibit the following:

Acts or threats of violence made by one employee of the company to another employee of the company.

Coercion, intimidation and harassment

An act or threat of action that would endanger employees of the company, company vendors, contractors or the public

Acts or threats that are made with words, actions, gestures, or symbols

Possession of a weapon in the workplace

Of course, if any of these policies are violated, the company must prove that they were violated before taking adverse action against the employee. However, that action can be disciplinary, such as suspension, or it can be termination, as is usually the case.

This entry was posted on Friday, September 7th, 2007 at 12:00 am and is filed under
Employment Training, Human Resources Management, Labor Laws, Management / Leadership Development.
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