Employees frequently engage in passionate discussions about union issues and working conditions, and those discussions do not always remain polite. Agencies sometimes find themselves at the crossroads of respecting employees’ union-related speech rights and enforcing the agency’s standards of conduct. This blog post provides general guidance to agencies regarding when employee speech exceeds the boundaries of legal protection.
Broad Protections for Workplace and Union Speech
The labor relations laws enforced by the Public Employment Relations Board (“PERB”) broadly protect employee speech concerning legitimate labor and employment concerns, whether or not the speech is directly related to union affairs. This includes the right to criticize management, working conditions, or even union leadership, so long as the speech is tied to advancing employee interests or is a logical extension of group activity.[1]
Importantly, these protections apply to all employees—not just union members or leaders. Even employees who are not formally affiliated with an employee organization may engage in protected activity if their speech relates to workplace concerns described above.
Heated or Unprofessional Language Is Often Still Protected
PERB has long recognized that workplace and union disputes can become heated. As a result, PERB allows “some leeway for impulsive behavior” in the context of protected activity.[2]
This means that employee speech does not lose protection simply because it is rude, disrespectful, hyperbolic, or otherwise unprofessional. Even a degree of shouting and using profanity is protected.
For example, PERB has held that an employee’s speech was protected where he raised his voice at the Human Resources Director in a public lobby area, accused her of “shirking” her duties, and repeatedly rang the office bell after she shut her door.[3] In another case, PERB ordered an employer to rescind discipline against employees for using the words “bullshit” and “chickenshit” in a work-related meeting.[4]
It is important to keep in mind that if employee speech is protected under applicable labor laws, an agency should not discipline the employee for the speech, even if it would otherwise violate the agency’s code of conduct policies.
When Does Speech Lose Protection?
Despite such broad protections for heated and aggressive employee speech, there are limits. Employee speech related to protected topics may lose protection under two primary circumstances:
- Maliciously False Statements
An employer may discipline an employee if it can prove, by clear and convincing evidence, that the employee’s statement was maliciously false. This is a high bar—the employer must show that the employee either knew the statement was false or acted with reckless disregard for whether it was true or false. Gross or extreme negligence as to a statement’s truth does not rise to the level of actual malice.[5]
Thus, while labor laws do not protect deliberate lies, an employee’s exaggeration of the facts or spreading inaccurate information about workplace matters may still be legally protected.
- Flagrant or Disruptive Conduct
Employee speech may also lose protection if it is so flagrant or insubordinate that it causes a substantial disruption in the workplace.
PERB evaluates this using a fact-specific test that considers all relevant circumstances, including but not limited to the place or forum in which the speech occurred, its subject matter, the nature of what occurred, and the extent to which the speech was provoked by the employer.[6]
For example, conduct that constitutes harassment under state or federal anti-discrimination laws may fall under this exception.
Notably, it is often more difficult for employers to establish disruption when the speech occurs off-duty or through indirect means such as email or text, rather than in face-to-face interactions.
The Line Between Strong Language and True Threats
One variation of flagrant and disruptive conduct where PERB draws a firm line is credible threats of violence, which do not constitute protected employee speech.
PERB applies an objective standard, asking whether a reasonable observer would interpret the statement as a real threat, not merely heated rhetoric. The listener’s subjective reaction is not determinative. Thus, even statements that make others feel uncomfortable, fearful, or personally attacked may still be protected under state labor laws if the statements do not present an objective threat of actual violence.
Statements that are clearly metaphorical fall within the scope of protected speech. In one case, PERB found that an employee’s emailed statements to employee listservs that he is “taking aim,” he is “pulling the trigger,” and “some nasty stuff is going to hit the fan, and some of it is likely going to splatter on you if you’re not careful” were protected because the speaker made clear he was speaking figuratively regarding threatened legal action, not physical violence.[7]
By contrast, speech may lose protection when it is accompanied by conduct or circumstances suggesting a genuine threat of violence. In Culwell v. Trustees of the California State University, PERB found that an employee’s remarks that he was going to take his union dues “out of [another employee’s] ass” and that he had “unfinished business” with him “after work”—which followed the employee’s receipt of two written reprimands for disruptive conduct including kicking chairs, using profanity toward his supervisor, and telling his supervisor to “grow some balls”—was sufficiently threatening to cross the line into unprotected conduct.[8] Thus, PERB upheld the university’s disciplinary action against the employee based upon its Violence-Free Workplace Policy.
On-Duty vs. Off-Duty Speech
The protected status of employee speech also depends on whether the speech occurs during or outside of working hours. Employers generally must allow protected activity during an employee’s non-work time and in non-work areas. However, employers may prohibit non-work-related activities, including but not limited to union activities, during work time, so long as those rules are applied consistently to all types of non-work activities.
In other words, an employer cannot single out union-related speech for restriction while allowing other personal conversations during the same time.
Additionally, speech that occurs while on duty is more likely to be found disruptive and therefore unprotected, particularly if it interferes with operations.
Key Takeaways for Employers
Navigating employee speech issues requires careful consideration of both the content and context of the communication. While the law protects a wide range of expression—even when it is heated or offensive—those protections are not unlimited.
Agencies should educate supervisory employees regarding employee speech protections, including the imperative to apply policies regulating speech consistently and neutrally regardless of whether it is related to union activity. Employers should also consult with legal counsel before disciplining an employee for speech related to concerted activity.
Understanding these boundaries can help employers respond appropriately to threats and disruptive conduct while avoiding unfair practice charges.
[1] SunLine Transit Agency (2024) PERB Decision No. 2928-M, p. 18.
[2] City of Oakland (2014) PERB Decision No. 2387-M, p. 23, quoting State of California (Department of Transportation) (1983) PERB Decision No. 304-S, adopting proposed dec. at pp. 22-28.
[3] Carpinteria Unified School District (2021) PERB Decision No. 2797, p. 16.
[4] Rio Hondo Community College District (1982) PERB Decisio n No. 260, pp. 11-12.
[5] Mt. San Jacinto Community College District (2023) PERB Decision No. 2865, p. 23.
[6] SunLine Transit Agency (2024) PERB Decision No. 2928-M, pp. 18-19.
[7] Mount San Jacinto Community College District (2018) PERB Decision No. 2605, pp. 15-17.
[8] Culwell v. Trustees of the California University (2014) PERB Decision No. 2400-H, adopting proposed decision at pp. 15-16.