What are First Amendment Rights at Work? (Key Points)

What Employee Speech is Protected in the Workplace?

According to SHRM, employees don’t have a constitutional right to free speech at work, but employers must be mindful of federal and state laws that protect certain types of worker speech [1].

The First Amendment protects citizens from government intrusion on free speech, but it does not apply to private employers.

The First Amendment does not apply to private actors, and employers are private actors

Government employees do have some First Amendment protections. However, private-sector employees often misunderstand that these constitutional rights do not extend to them.

Businesses cannot restrict all employee speech. For example, under the National Labor Relations Act (NLRA), private-sector employees have the right to engage in concerted activities, including discussing the terms and conditions of their employment. This protection applies to both union and nonunion workers.

Employees are protected when they discuss wages, seek raises, or talk about workplace conditions. Additionally, employees can speak out about unlawful conduct in the workplace, such as harassment, discrimination, or safety violations, under various federal laws.

What are My Rights as a Public Employee?

According to SCLG, the First Amendment protects free speech rights from government suppression, which means it applies to public sector workplaces [2]. However, these rights are not absolute.

For a public employee’s speech to be protected from workplace repercussions, it must be made:

• As a citizen, not as part of official duties
• On a matter of public concern

Examples of public employees include:

• Teachers and administrators in public schools
• Police officers
• Firefighters
• Doctors and other employees at public hospitals
• Employees in federal, state, or local government agencies

First Amendment protections can also extend to those not directly employed by the government, such as:

• Employees of companies with government contracts
• Private employees providing services to public agencies
• Volunteers providing public services

Government employees speak as private citizens when their statements are not part of their official duties. Factors to consider include whether:

• Communications were made within the chain of command or to the public
• The subject matter was related to job duties
• The statements contradicted the supervisor’s orders
• The topic addressed broader concerns like corruption or systemic abuse

Speech is considered a matter of public concern if it relates to political, social, or other community issues. The Supreme Court has noted that First Amendment protection applies as long as the speech does not threaten the employer’s interest in maintaining an efficient workplace.

If a government employer retaliates against an employee for protected speech, it can violate constitutional rights. Proving retaliation requires showing that an adverse employment action occurred and that the speech was a substantial or motivating factor, often necessitating legal advice and representation.

How Can Private Employers Set Boundaries on Employee Speech?

As stated by the HRDirect, private employers can and should establish guidelines for employee speech that isn’t protected under the NLRA. The first step is to outline company rules and expectations in a comprehensive employee handbook, clearly informing employees about permissible behavior [3].

Your policies should explicitly state that intimidating, discriminatory, or harassing conduct, as well as any actions that disrupt workplace productivity, will not be tolerated. If political discussions are included, specify those boundaries clearly.

It’s important, too, that guidelines regarding freedom of expression be carefully crafted and uniformly enforced so all employees are treated equally. Do your part to inform employees, and then trust them to do the right thing. Exercising control is necessary, but you also need to be reasonable and allow employees to engage with one another – HR Direct

Understanding First Amendment Rights and Employment: Key Points

According to Forbes, from a technical standpoint, the First Amendment prevents Congress from making laws that restrict free speech. Over time, this protection has extended to include various actions by state and federal governments [4].

However, these protections are not absolute and only apply to government actions. For example, while a police officer cannot arrest you for wearing a politically supportive hat, your private employer could potentially fire you for the same reason. There are a few notable exceptions to this general rule.

Exception #1: Government Employers

Employees of the federal government have broader free speech protections compared to private-sector workers, but limitations still exist. For government employees to receive these protections, their speech must:

Address a matter of public concern. If the topic is of legitimate public interest and the speech is made by a citizen rather than an employee, it is more likely to be protected.
Not interfere significantly with the government employer’s ability to deliver public services. Speech that disrupts the workplace is less likely to be protected.

A notable case involved a sheriff’s deputy fired for “liking” a political rival’s campaign Facebook page. The appeals court ruled that this act was protected speech because it was done by a private citizen and did not disrupt the sheriff’s office.

Exception #2: Concerted Activity

Speech related to self-organization for collective bargaining purposes is strongly protected under the National Labor Relations Act (NLRA). This protection covers concerted activities where two or more employees work together regarding employment conditions.

An exception to this protection exists if the speech is so abusive it becomes “opprobrious,” in which case the NLRA protections might not apply. The NLRB has ruled that even profanity-filled posts supporting unionization can still be protected.

Exception #3: Discriminatory Employer Policies

If an employer’s restriction on speech disproportionately affects a certain group, it may be considered illegal discrimination. For example, a policy banning Nike apparel in support of Colin Kaepernick could be discriminatory if it primarily affects employees of a particular race.

Exception #4: State Law Protections

States can enact laws that provide additional speech protections beyond the Constitution. Some states, like California, prohibit private employers from taking adverse actions against employees based on their political activities outside of work. Colorado and Washington, D.C. have similar protections, with D.C. recognizing political affiliation as a protected class.

The exact scope of protections varies by state, and many state laws only protect political speech outside the workplace.

Related Articles:

• Types of Protected Classes in California
• What is the Right to Sue Letter?
• What is a Workplace Investigation?

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References:

1. https://www.shrm.org/topics-tools/employment-law-compliance/employee-speech-protected-workplace
2. https://www.shouselaw.com/ca/blog/first-amendment-rights-at-work/
3. https://www.hrdirect.com/can-employees-exercise-complete-freedom-of-speech-in-the-workplace
4. https://www.forbes.com/sites/tomspiggle/2018/09/28/free-speech-work-rights/?sh=744fcdf038c8