The Bill of Rights: Speech and Guns in the Private Workplace

The Bill of Rights – what do they really guarantee us in the workplace? It seems we can’t turn on the television or log onto a news site without encountering some type of discussion about constitutional rights. The horrific shootings in places like Houston, Orlando and Baton Rouge have electrified the debate over the wording of the Second Amendment, while a host of legal cases debating the definition of religious rights have tested the conventional understandings of a pluralistic society.

To answer this question, we reached out to several experts familiar with legal interpretations of the First and Second Amendments. The laws that define our right to freedom of speech, religious expression, redress and the right to arm ourselves if we choose (and our assumed right to protect ourselves through laws and conventions from those who do) can be found at the heart of our definition of what it means to be a U.S. citizen.

Defining the Second Amendment of the Bill of Rights

It’s doubtful that the architects of the Second Amendment ever meant to sow confusion with awkward grammar. One ill-placed comma – what grammarians degradingly call the “comma splice” -- has confounded historians and legal experts for years. It’s also galvanized decades of debate over the actual interpretation of citizens’ rights when it comes to owning and carrying a gun.

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Did the Founding Fathers mean to say that the “right of the people to keep and bear arms” was in addition to the expectation of “a well regulated militia?” Or was that militia the definition of the people’s right to bear arms?

Penny Venetis, who serves as a clinical professor of law for Rutgers University and the vice president and legal director of Legal Momentum, said the debate over the interpretation of the Second Amendment is also a philosophical one.

“There are different schools of thought, [and] the Supreme Court remains divided on the interpretation of much of the Constitution,” Venetis told TriplePundit. At the heart of the debate is whether the Constitution “is a stagnant document that should be interpreted using an 18th-century sensibility or a dynamic document that takes into account today’s world and today’s issues,” she continued.

But when it comes to guns in the private workplace, the wording of the Second Amendment is an arbitrary issue, Venetis explained. In states without ‘bring your gun to work’ laws in place, the proprietor has the final say over whether employees can carry a weapon onto the premises.

“A private employer can actually say, 'You can’t bring a firearm to work,'” Venetis said.  “The Second Amendment can only be infringed by the state, as with any constitutional amendment. So a workplace that isn’t a public workspace can say, 'You can’t say the following; there’s a dress code; you can’t carry a gun here,' unless there is a law in the particular state that actually allows that to happen.”

In fact, the boss of a private company can force an employee to leave guns at home even if he or she has raised concerns about workplace safety.

The case of Jeremy Hoven, a Walgreens pharmacist who shot at robbers with his private gun during a 2011 holdup, highlights the challenge that this issue often presents. The employee was fired for violating the company policy against bringing guns to work, even though he testified that he had asked the employer to increase security at the store because he feared for his safety. The court sided with the employer, reinforcing the fact that business owners -- not employees -- have the right to determine what is necessary when it comes to guns in the workplace.

State laws and the Second Amendment

State, not federal, laws are often the force du jour that presides over private employer policies. In recent years, states like Arizona, Ohio, Florida, Mississippi and Illinois have passed laws allowing guns to be brought to work. Those policies even trump the preferences of private employers that may not agree with the state gun-carrying laws.

The Republican National Convention in Ohio illustrates this problem: The organizers of the convention, a private company, said they didn’t want guns to be brought into the convention hall. The final say, however, rested with the state.

“It just demonstrates the public-private dichotomy in terms of constitutional rights,” Venetis told us.

But in public workplaces, such as federal or state government offices, the state still has a say in the rights of the public employee. The public employer, if it is a city for example, may as well.

In Houston, Texas, public employees are prohibited from carrying a gun onto work premises “except those who are required to do so in the performance of their official duties.” Texas allows guns to be carried into the parking lot, but not into public spaces.

The First Amendment and the private employer

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The private employer also has considerable say in whether those rights of expression, such as the right to free speech can be exercised in the workplace. That includes what’s said in casual discussion such as political debates and issues the employer may not agree with.

Under the First Amendment, the private worker also doesn’t have any absolute rights to religious expression. The boss has some say whether one can wear religious headwear such as a (Jewish) kippah, a Muslim hijab or a Mennonite head covering.

“The First Amendment applies solely to the government, so non-governmental employers do not have to comply with it,” said Professor Jeannette Cox, who specializes in disability law and discrimination law at the University of Dayton.

That’s not to say private employee don’t have rights. “There are a patchwork of other statutes that limit what private employers can do,” Cox told 3p.

The private employer may have to show that religious or cultural expression presents an “undue hardship” on his or her business. “Here, the relevant federal law is the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of religion and requires employers to accommodate an employee's sincerely held religious beliefs or practices unless the accommodation would impose an undue hardship on the business.”

Court cases like Burkwell v. Hobby Lobby, in which the closely held for-profit corporation’s right to religious belief were upheld by the Supreme Court, have added to the patchwork interpretation of these private employee rights.

While one might assume that the right to take time to vote would fall under protected freedom of speech issues, the Bill of Rights is mute on this issue when it comes to private workplaces as well.

“Fortunately, the majority of states have statutes that require both public and private employers to provide their employees time off to vote,” Cox noted. And they vary greatly in the protections they afford. While California requires businesses to provide two hours of paid time to employees that wish to vote, while many states limit the hours that employees can request to vote. New Hampshire specifies that voters who must work during voting hours should vote by absentee ballot.

The public employee – whether working for a federal, state, county or municipal office – however, has increased protections when it comes to the right to work in an environment that is free from discrimination.

Whereas private employees must look to the Americans with Disabilities Act to protect the right to accommodation in the workplace, “the First Amendment protects employees with disabilities (and all other employees) who work for a public employer,” Cox said. For the public employee, the Bill of Rights has a powerful say in the protected rights of the public employee.

For the private employee however, notes Cox in her article on free speech, today’s at-will workplace is best summed up in the context of 19th century jurist Oliver Wendell Holmes’s famous declaration:

“An employee may have a constitutional right to talk politics, but he has no constitutional right to be employed.”

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