Free (almost) Speech in the Workplace has Come to Washington

Citizens and residents of this country are accustomed to exercising and experiencing the right of free speech in public discourse, political activities, and in the media. This is a fundamental freedom largely taken for granted in most areas of American life except for the work place.  Historically, larger employers and their HR departments were within their rights to terminate an employee (almost always “at will”) for saying things the employer deemed unsuitable, distracting, or somehow contrary to a business purpose. Freedom of speech was generally discussed, but not exercised, in the work place.  

At least in Washington State, the legislature and the Courts have established protections for certain types of speech in the workplace defining certain areas where the State has determined free exchange of ideas among employees in the workplace advanced public policy objectives on certain topics where discourse was more beneficial than detrimental.

This article provides examples of speech protected in the workplace under Washington State law. Understanding these protections is crucial for maintaining a respectful and legally compliant work environment.

Types of Protected Speech

1. First Amendment Protections

• General Protections: Employees are protected from retaliation for exercising their First Amendment rights, including freedom of speech, press, assembly, and petition on matters of public concern. This protection is reinforced by the Washington State Constitution.

• Uniform Public Expression Protection Act (UPEPA): Enacted to protect individuals from frivolous lawsuits aimed at silencing their lawful exercise of free speech. The UPEPA provides for expedited dismissal of such lawsuits and awards attorney’s fees to the defendant1.  This is also known as the anti-slap statute.

2. Workplace Safety and Health Complaints

• Washington Industrial Safety and Health Act (WISHA): Employees have the right to report unsafe working conditions without fear of retaliation. This includes filing safety complaints or participating in safety and health investigations2.

3. Discrimination and Harassment Complaints

• Washington Law Against Discrimination (WLAD): Protects employees who report or oppose discriminatory practices based on race, color, national origin, sex, disability, and other protected classes. Retaliation against employees for making such complaints is prohibited3.

4. Wage and Hour Complaints

• Minimum Wage Act: Employees are protected when they file complaints regarding wage and hour violations, including unpaid wages, overtime, and meal/rest breaks3.

5.    Washington Equal Pay and Opportunities Act (“WEPOA”)[i]

·         The WPOA:  Aimed at protecting an employee's discussion of wages with their employer [1][ii]and other employees by imposing various restraints on employer behavior.  RCW 49.58.040(2)(a)-(c). (prohibiting employer from retaliating for discussing wages, asking employer about wages, or aiding an employee in exercising rights under EPOA)

·          An employer may not discharge or in any other manner retaliate against an employee for:

·         Inquiring about, disclosing, comparing, or otherwise discussing the employee's wages or the wages of any other employee.

·         (b) Asking the employer to provide a reason for the employee's wages or lack of opportunity for advancement; or

·         (c) Aiding or encouraging an employee to exercise his or her rights under this section

6.     Protected Leave

Various Leave Laws: Employees are protected when they take leave for reasons such as medical conditions, family care, domestic violence, and military service. Retaliation for taking legally protected leave is prohibited4.

Relevant Case Law

1. Roberts v. Dudley (1997)

• This case established that employees who report workplace safety violations are protected from retaliation under WISHA2.

2. Wilmot v. Kaiser Aluminum & Chemical Corp. (1991)

• The Washington Supreme Court ruled that employees who file workers’ compensation claims are protected from retaliatory discharge2.

3. Estevez v. Faculty Club of the University of Washington (2005)

• This case reinforced protections under WLAD, ruling that employees who oppose discriminatory practices are protected from retaliation3.

Conclusion

Employees in Washington State are afforded robust protections for various types of speech and activities in the workplace. It is essential for all employees to understand these rights and for employers to ensure compliance with these laws to foster a safe and equitable work environment..

1: Washington’s Uniform Public Expression Protection Act. 2: Washington Industrial Safety and Health Act (WISHA), Chapter 49.17 Revised Code of Washington (RCW). 3: Washington Law Against Discrimination (WLAD), Chapter 49.60 RCW. 4: Washington State Department of Labor & Industries; See, e.g., RCW 49.58.040(1)(a)-(b) (prohibiting employer from conditioning employment on

[1]

[ii]