A common misconception is that employees have a constitutionally protected right of free speech in the workplace. The truth is, public sector employees enjoy some limited protection. But if you're a private employee, the First Amendment will not protect you from being fired for something you say at work.
Likewise, it won't prevent your employer from firing, disciplining, or demoting you for things you post on social media in your free time. This is true even if your statement is not criminal, vulgar, or offensive.
So what are your rights?
The First Amendment
The First Amendment guarantees the right to free speech, freedom of the press, and freedom of religion. It also recognizes the right to assemble peacefully to promote and share ideas, and the right to petition the government without fear of redress.
But what many people don’t realize is that the First Amendment only protects against adverse actions taken by the government. It does not apply to private employers and their employees. Private employers can generally manage their workplace as they see fit so long as their actions and policies are lawful and non-discriminatory.
As a practical matter, this means that if your employer disciplines or fires you for something you say at work or post on social media, you have no valid legal cause of action against your employer based on the First Amendment.
Protected Speech in the Public Sector
Public employees do enjoy First Amendment protection for things they say at work. Generally, for speech to be protected, the public employee must be speaking as a private person on a matter of public concern. But the analysis doesn’t end there. The employee’s interest in speaking out must outweigh the government’s interest in limiting the employee’s speech.
For example, a public school teacher writing a letter to a newspaper criticizing the school board’s handling of finances was held by the Supreme Court to be protected free speech. The teacher’s act of writing the letter did not involve school-related duties and the board’s handling of finances was a matter of public importance.
Court decisions, however, have not been as favorable to public employees when the speech occurs “pursuant to the employee’s official duties.” The idea is that the government should be able to exercise some control over employees who act in their official capacity. Thus, the First Amendment did not protect a state police officer who was disciplined for making complaints about his supervisors during a work meeting. According to the court, the officer was acting in his official capacity, and not as a private citizen, when he alleged misconduct during a regular scheduled meeting designed to exchange information about investigations.
Keep in mind that these examples focus on the First Amendment and constitutionally protected speech. Other rules and regulations could come into play, for instance, when a police officer reports internal misconduct.
Protections for Speech in the Private Sector
The First Amendment does not apply to private employers, but this doesn’t mean that the employer’s power to limit speech is boundless. There are many laws that indirectly protect different types of speech, even in the private sector.
The National Labor Relations Act (NLRA)
The NLRA governs how employers and unions deal with each other and individual employees. It also protects certain types of activities and speech between employees, union and non-union, about the terms and conditions of employment.
Protected speech could include online or in-person discussions about workplace safety, and complaints about work environment, management, and wages. For example, the National Labor Relations Board (NLRB) ruled against an employer who fired five employees for raising workplace safety concerns in a YouTube video.
For more information on the NLRA and workplace speech, the NLRB website is a good place to start.
Antidiscrimination Laws
Federal and state laws protect employees from various forms of discrimination. Federal antidiscrimination laws include Title VII of the Civil Rights Act (Title VII), the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), and the Family and Medical Leave Act (FMLA). Many states have similar statutes.
Generally, employee speech that involves reporting harassment or discrimination is protected, not by the First Amendment, but rather by the specific antidiscrimination law at issue. If an employer disciplines or fires an employee for complaining about discriminatory conduct, the employee would have a retaliatory discharge lawsuit against the employer.
Whistleblower Laws
The Whistleblower Protection Act of 1989 is a federal law that protects government workers when they report employer activities that, among other things, violate the law, constitute a gross waste of funds, or endanger the public health or welfare. Many state statutes protect private employees in similar situations.
An employer cannot take an adverse employment action against an employee who in good faith reports an employer’s violation of the law. Keep in mind, however, that state laws are not uniform and a variety of exceptions could apply.
Workplace Safety Laws
The Occupational Safety and Health Act (OSHA) and similar state laws aim to ensure safe working conditions. It would be illegal for an employer to fire an employee for filing a complaint about a workplace hazard that the employer has wrongfully failed to remedy.
Political Speech and Off-Duty Conduct Laws
The First Amendment and federal law generally does not protect against political discrimination, meaning you cannot rely on these laws if your employer takes an adverse employment action against you based on your political views. Remember, when it comes to the First Amendment, there must be adverse action taken by the government for speech to be protected.
Some states, however, have enacted political discrimination laws that protect private employees against discrimination based on political speech, affiliation, and activities.
Similarly, off-duty conduct laws make it illegal in some states for an employer to take adverse action against an employee based on the employee’s lawful conduct that occurs away from work. For example, it would be unlawful for an employer with strong views against alcohol consumption to discipline a twenty-one-year-old employee for drinking beer when he’s off-duty. The story would be different, however, if the employee was convicted of drunk driving or performed poorly at work because of off-duty alcohol consumption.
Get Legal Help
The relationship between free speech and the workplace is a complicated one. As a rule of thumb, the First Amendment offers some protection to public employees and no protection to private employees. Beyond that, whether an employee is protected against discrimination based on something that was said at work or posted online will depend on the nature of the speech and whether there is some specific federal or state law that applies.
If you are uncertain whether your employer is unlawfully limiting your free speech or wrongfully discriminating against you, it’s a good idea to talk to an employment attorney to discuss your legal options.