“Can an employer dictate who an employee can and can’t speak with?”

Question: I was recently laid off from an ad agency. I’ve tried to contact one of my direct reports whom I’d become friends with. No replies. I asked another friend there to inquire with the first friend, and she told him HR said she was forbidden from contacting me for “legal reasons.”

I’ve never heard that before, and can’t imagine how it could be true. Can an employer dictate who you can and can’t speak with?    

Stamford, Connecticut

Answer: Dear Ben: Your question raises issues of the law, lawyers and an ever-increasing level of fear among employees in the workplace.        

1. Employers can surely prohibit employees from making or taking personal telephone calls while on the job. There is no question that an employer can prohibit making or taking personal telephone calls by employees on the job, almost without any limit. In fact, the making or taking of personal telephone calls during working hours is sometimes referred to as “theft of time,” and considered “cause” for firing by many employers.

2. As to off-the-job activities, a few states limit what employers can prohibit. A few states, not including Connecticut, have laws that say employers cannot limit off-the-job employees’ social, religious or political activities. However, even as to those laws, I have never heard of any such law being used to denying an employer the ability to prohibit telephone calls with a former employee.

3. Where there may be a legitimate “business-related” reason for such a limitation, almost all courts uphold such prohibitions. Courts give employers wide latitude to limit conduct that, in the employer’s mind, might harm the employers legitimate business interests. This is because the relation of employment is a “voluntary association,” that is, no employee must remain an employee unless he or she wants to. It is analogous to the relationship of friendship, where friends are free to make almost any “rules” of their friendship, without government interference. While employment is different – it is how you earn a livelihood – our society still views it as a “voluntary association.”   

4. While you have not gone into great detail, I suspect your former employer may be concerned that you (a) might try to “steal” employees, (b) might try to “steal” business secrets, or (c) might want information with which to sue the employer. In my 30+ years of representing employees who have lost their jobs, these are the reasons I’ve seen employers issue orders that “No one may speak with him or her.” And, too, these are the kind of things that Human Resources representatives would likely refer to as “legal” reasons to prohibit telephone calls with you. Have you considered going into competition with the former employer? Have you asked anyone to come work with you? Have you suggested you might sue your former employer? If you have done any of these, that is probably the origin of the “gag order.”

Employers’ lawyers have inculcated a degree of “legalism” into so much of the daily workplace experience that “legal reasons” has become akin to “orders from above”; no one knows where they came from, but everyone says “They must be followed.” 

5. In my opinion, what you are experiencing is a reflection of the rampant fear felt by so many people on their jobs these days, and coercive control being foisted upon them by their employees. To a degree I have never seen before, everyone seems to be afraid at work: (a) afraid to lose their jobs; (b) afraid of retaliation if they do anything wrong; (c) afraid of having an independent mind, or being viewed as a “trouble-maker.” Emboldened by this high level of fear, many employers are exercising a degree of control over employees’ lives and conduct that is also unprecedented. It is something that I hope, with time, will abate. But for now, it is something that should not surprise anyone.

For these reasons, you should not feel betrayal, abandonment or disappointment.

6. My clients’ experience in these circumstances suggests that, with time, this will “pass.” Many times I have heard of experiences like yours, and in most instances the fear subsides and the friendship remains. It’s usually just a matter of time.

Ben, though this may not make you feel any better about not being able to communicate with your friends, it’s a sign of the times. As I noted, chances are it will “evaporate” over time, once you are “off the radar screen” of your former employer.

Thanks for writing in. Hope your job search is an easy one. 

Al Sklover

Repairing the World –
One Empowered and Productive Employee at a Time ™  

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© 2012 Alan L. Sklover, All Rights Reserved.

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