One of my employees quit to start a competing business. I don't want my customers or other employees to jump ship as well. Can I ban my employees from talking about her business while on the clock?
Under some circumstances you can ask employees to refrain from talking about certain topics…within legal limits.
Employees in the private sector do not have a constitutional right to say whatever they want whenever they want at work. The First Amendment does not prevent private employers from restricting employee speech.
However, employers cannot ban or restrict all employee speech. The National Labor Relations Act (NLRA) protects employee rights to engage in protected activity. Meaning employees have a protected right to discuss the terms and conditions of their employment. This includes but is not limited to, discussing wages, unsafe working conditions, illegal activity, or harassment and discrimination in the workplace.
There may also be state laws that protect an employee's right to speech even further.
If your employees are discussing their wages or working conditions in relation to your former worker's new business, that speech may be protected.
Speech involving the competing business that may not be protected could include disclosing trade secrets, using harassing speech, or merely griping about work without engaging in protected activity.
Always consult with your local counsel about federal, state, and local laws related to employee speech before instituting a ban.
Jack McCalmon, Leslie Zieren, and Emily Brodzinski are attorneys with more than 60 years combined experience assisting employers in lowering their risk, including answering questions, like the one above, through the McCalmon Group's Best Practices Help Line. The Best Practice Help Line is a service of The McCalmon Group, Inc. Your organization may have access to The Best Practice Help Line or a similar service from another provider at no cost to you or at a discount. For questions about The Best Practice Help Line or what similar services are available to you via this Platform, call 888.712.7667.
If you have a question that you would like Jack McCalmon, Leslie Zieren, or Emily Brodzinski to consider for this column, please submit it to [email protected]. Please note that The McCalmon Group cannot guarantee that your question will be answered. Answers are based on generally accepted risk management best practices. They are not, and should not be considered, legal advice. If you need an answer immediately or desire legal advice, please call your local legal counsel.
