Free Speech is not Protected at Work but Some things you say may be.

by Michael Haberman on August 13, 2012 · 1 comment


Occasionally you hear someone complain that they got disciplined or fired for “exercising their right of free speech”. Well I have some bad news for you if you believe this; free speech is not protected at work, but some things you say at work may be protected.

Most of us are familiar with the First Amendment of the U.S. Constitution which reads “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.” Many people think this allows them to say whatever they want. This is incorrect. The First Amendment covers your right to free speech in relation to the government, not private sector employers.

Why is it important to know that? We are in an election year and some employees may be more than happy to express their political opinion at work, to wear a campaign button or to try distribute campaign literature. Companies would be within their rights to terminate any employee for doing so. (That is why it is probably a good thing to leave politics at home.) Disagreeing with the boss on politics could be a route to the unemployment office.

However, according to attorney D. Albert Brannen of Fisher & Phillips in Atlanta, there are other laws that may protect employees in some things they say at work. Prime among these is the National Labor Relations Act, NLRA, that affords protection to employees engaged in “protected concerted activity” as defined under Section 7 of the NLRA. If you have been paying attention lately you know that the NLRB has been making a number of rulings based on Section 7. That is why you have to be careful in terminating employees for things said on Facebook. That carefulness needs to be applied to the workplace as well.

Since the NLRA was passed in 1935 employees have always been protected when engaging in talking about unions, wearing union buttons and shirts, soliciting fellow employees as long as this does not occur in non-work areas, such as breakrooms and during non-work times. This protection could extend to political activity if a position of the union dealt with a political topic. Brannen said in his article “Court rulings and opinions of the General Counsel … make it clear that employees can engage in political campaign activities that may be contrary to the interest or positions of their employer. For example discharging employees for campaigning against immigration reform….would be unlawful.”

Political discussions and taking action based on those discussions can be problematic. Before you terminate an employee based upon their expression of a political position carefully consider what you are doing. In fact you are better off not terminating for someone’s political opinion. You are better off terminating for business reasons, such as rules violations on solicitation during work, as opposed to whether you agree with their political stance. Stay away from knee-jerk reactions… they may get you in trouble. But you can rest assured you will not be charged with having violated their First Amendment rights.

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