Speech in the Workplace Q&A
An Explanatory Statement of the ALA Code of Ethics
This document is intended to provide general guidance for employees, administrators, governing authorities and volunteers of libraries of all types regarding common questions about Speech in the Workplace, and is not intended as a comprehensive list of requirements or legal advice. Legal counsel should be consulted for definitive guidance and for the approval of policy statements. All libraries should have board or administration approved policies addressing speech in the workplace. It is the responsibility of all employees to be aware of and adhere to such policies. Employees should use professional judgement regarding speech in the workplace, including via social media platforms.
1) Since libraries have a special responsibility to protect intellectual freedom and freedom of expression, do libraries have a special responsibility to be workplaces that tolerate employee expression more than other professional settings?
Libraries play a special role in ensuring the free flow of information in a democratic society. Librarians and library workers are often called on to fight censorship and resist efforts to restrict individuals from receiving information and expressing ideas. We need to demonstrate our commitment to free speech by encouraging it in the workplace.
It is the responsibility of the employer to have clear policies and procedures regarding expressions of viewpoints not necessarily in line with the employer, and it is the employee’s responsibility to be familiar with these policies and procedures.
Libraries are encouraged to adopt ALA policy B.9.21 on Workplace Speech. “Libraries should encourage discussion among library workers, including library administrators, of non-confidential professional and policy matters about the operation of the library and matters of public concern within the framework of applicable laws.” This does not provide full legal protection for employees but does help promote free speech in the workplace.
2) What are some examples of speech or expression that might be included in my employer’s workplace speech policies?
Speech may include more than just verbal statements. Speech may also include but not be limited to buttons, t-shirt slogans, posters, stickers or trending symbols of political or social activism.
3) What about questions of library policy? Do I have free speech rights to speak on internal library matters?
Since the relationship between employee and employer is a contractual one, employee speech is governed by the employment contract, not the First Amendment. The speech environment in a library as a workplace may vary according to the organizational hierarchy and an employee’s place in it, the organizational culture, and the personalities that make up that culture. If you are a member of a union, check your union contract to see if it offers any protection. If you are a librarian who has tenure or an arrangement similar to tenure, check your tenure or reappointment documents.
4) Is there a difference if I work in a non-public, non-governmental institution library (parochial or corporate)?
It is your obligation to know the policies regarding what you are permitted to say professionally in that setting and to find out if there are restrictions within that setting on what you say in the workplace. It is also your obligation to know what you’re allowed to say personally. In some private settings referring to a same sex partner has been grounds for termination.
5) Is there an ethical obligation to raise questions and initiate change about policies I believe to be detrimental to the public interest or to the profession?
The first tenet of the Code of Ethics of the American Library Association begins “we provide the highest level of service to all library users...” Examples of possible conflicts between your vision of highest level of service and your employer’s could include: you are an academic librarian who disagrees with your university’s lack of privacy policy for electronic resources; you are a children’s librarian who disagrees with your library’s policy of fines for children; you are a library director and your trustees disagree with your stance on filtering, or you are a school librarian and your administrator wants you to violate student privacy by sending overdue lists to teachers. In these and other situations, you should and probably will feel an ethical obligation as a professional to speak out and make your library values known. You will have to use your professional judgment as to when and how to do so, and you must be prepared to accept any potential consequences.
Also keep in mind that Article V of the ALA Code of Ethics states, “we treat co-workers and other colleagues with respect, fairness and good faith, and advocate conditions of employment that safeguard the rights and welfare of all employees of our institutions.” Article VIII states, “we strive for excellence in the profession by … encouraging the professional development of co-workers… .”
6) Does the First Amendment apply to workplace speech?
Through the Library Bill of Rights and its Interpretations, the American Library Association supports freedom of expression and the First Amendment in the strongest possible terms. The freedom of expression guaranteed by the First Amendment, however, has traditionally not been thought to apply to employee speech in the workplace. The doctrine of “employment at will” (applicable in most states) has meant that just as employees may resign at any time, so too may employers dismiss employees at any time unless the dismissal is for a prohibited reason like discrimination. Some employers may believe that if employees were given full rights to free speech on work related issues, loyalty and discipline would be weakened and the coordination needed for the effective and efficient functioning of bureaucracies would dissolve.
7) Does this mean I have no free speech rights as an employee?
Because the First Amendment only protects individuals against government infringements upon free speech rights, First Amendment protections for speech activities in the workplace are generally not available to employees of private companies or institutions. As one court explained, "the First Amendment free speech provision fails to establish public policy against terminations by private employers for speech-related activities because this provision applies only to government actions and expresses no public policy regarding terminations by private employers." Grinzi v. San Diego Hospice Corp., 120 Cal. App. 4th 72, 79 (2004); see also George v. Pacific-CSC Work Furlough, 91 F.3d 1227 (1996).
If you are a government employee, your speech activities in the workplace may enjoy limited protection under the First Amendment. In Pickering v. Board of Ed. 391 U.S. 563 (1968) the Supreme Court crafted a balancing test intended to protect the constitutional rights of an employee speaking as a citizen on matters of public concern while preserving the government employer's interest in ensuring that its employees do not undermine its operations or interfere with accomplishment of its objectives. In brief, if your speech addresses a matter of public concern, and it does not interfere with your employer's ability to provide public services or impair discipline or harmony in the workplace, the courts may side with you. Note, however, that the courts often give great deference to an employer's conclusion that an employee's speech has been disruptive or damaging.
In 2006, the Supreme Court clarified its decision in Pickering. In Garcetti v. Ceballos, 547 U.S. 410 (2006), the Supreme Court held that public employees who make statements pursuant to their official duties are not speaking as citizens for First Amendment purposes and may be disciplined by their employer for that speech.
8) What about “whistleblowing”?
Whistleblowing is “the disclosure by a person, usually an employee in a government agency or private enterprise, to the public or to those in authority, of mismanagement, corruption, illegality, or some other wrongdoing.” There are federal and state statutes to protect employees from retaliation for disclosing certain kinds of employer misconduct, like fraud, abuse, waste, or the violation of a law, rule, or regulation. However, these protections only go so far.
9) What are some issues to consider when speaking out on a library policy matter?
Try to know all the facts on the issue and attempt to understand it from your employer’s point of view. Consult with your colleagues. Do your colleagues agree with you or are you alone? Can you build support among your colleagues for your position? Can you get others to raise the issue for you or can you do so anonymously? Will it be possible to work from within for change? If your convictions are strong enough, are you willing to resign? Is the issue important enough to you to risk disciplinary action? Assess your place in the hierarchy and know your workplace culture. If you are in a union you may be protected by your union contract. A tenured librarian may have more freedom to speak out than a new librarian. Library directors may be expected to make their views known to their trustees. Your boss may be more receptive to criticism at certain times than others. Some bosses may be open to disagreement in private but not in staff meetings. Some may prefer a verbal conversation to a written memo. You will have to exercise your own professional judgment in assessing your workplace environment.
10) If I speak out in the workplace on a matter of professional policy, and my employer takes action against me, will the ALA support me?
The ALA does not provide mediation, financial aid, or legal aid in response to workplace disputes. Your employer has an array of sanctions that may or may not be imposed on you, including but not limited to: reassignment, passing you up for promotion, passing you up for raises, denying you tenure, passing you up for the best assignments, and ultimately dismissal. If you decide to speak out on a matter involving professional policy, it will be a matter between you and your employer. The ALA does administer the LeRoy C. Merritt Humanitarian Fund, which has provided financial assistance for librarians who have been discriminated against or denied employment rights because of their defense of intellectual freedom including freedom of speech. Some state library associations offer professional liability insurance for members that can help with reimbursement of legal fees related to termination. Check with your state association to see if this is available to you.
(See the Enforcement of the Code of Ethics Q&A for a history of past efforts related to mediation.)
11) Can I be disciplined for workplace-related comments on social media?
In some recent decisions, the National Labor Relations Board (NLRB) has ruled that employers cannot discipline employees for certain work-related conversations conducted on social media, such as Facebook and Twitter. In each case, the NLRB found that employees' posted comments about their workplace were "protected concerted activity" under the National Labor Relations Act because the employees were engaged in conversations discussing the terms and conditions of their employment. Such protections are limited, however, and do not extend to posts or conversations that are unrelated to workplace conditions.
Personal and professional viewpoints need to be kept separate. Care must be taken before expressing personal views on organizational platforms. You should not identify your workplace as part of your personal pages to ensure there is no confusing your personal viewpoint with your professional one.
Article VI of the Code of Ethics states “We do not advance private interests at the expense of library users, colleagues, or our employing institutions.” Article VII states “We distinguish between our personal convictions and professional duties and do not allow our personal beliefs to interfere with fair representation of the aims of our institutions or the provision of access to their information resources.”
Both statements address a separation between private/personal and public/professional. However, library workers are often recognized beyond their libraries as community helpers and leaders, and what they post on their personal social media accounts may be associated with their professional position regardless of their intention. Harvard Business Review and Queens University of Charlotte provide methods to separate personal and professional identities on social media.
Library workers should use professional judgment when conducting themselves in public, even in their leisure time, which extends to social media use. Reputations, both personally and professionally, can be at stake. The American Institute of CPAs provides tips for staying professional on social media.
Discussion of professional issues and public documents on social media does not fall within the NLRB definition of workplace-related comments.
12) Where can I find more information?
Questions about speech in the workplace can be directed to the Committee on Professional Ethics c/o the ALA Office of Intellectual Freedom by phone at (312) 280-4226 or by email at oif@ala.org.
Suggested Links/Resources:
The National Whistleblower Center (NWC), a non-profit, tax-exempt, non-partisan organization, is the leading whistleblower legal advocacy organization with an almost 30-year history of protecting the right of individuals to report wrongdoing without fear of retaliation.
OSHA's Whistleblower Protection Program enforces the whistleblower provisions of more than twenty whistleblower statutes protecting employees who report violations of various workplace safety and health, airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health insurance reform, motor vehicle safety, nuclear, pipeline, public transportation agency, railroad, maritime, and securities laws. Rights afforded by these whistleblower protection laws include, but are not limited to, worker participation in safety and health activities, reporting a work-related injury, illness or fatality, or reporting a violation of the statutes herein.
The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person's race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information. Federal Laws prohibit workplace discrimination and are enforced by EEOC. These are passed by Congress and signed by the President.
Adopted by the Committee on Professional Ethics, July 2001; Amended January 2004, June 26, 2006, January 24, 2007, July 1, 2014; and amended April 30, 2019.
