Free Speech is a fundamental concept of our modern society. The First Amendment states that “Congress shall make no law… abridging the freedom of speech.” Many are surprised to learn that free speech protection is limited within the scope of employment.
Public employees’ speech is protected under the First Amendment; however, that protection is limited. In order for speech to be protected, the employee must be speaking as a private citizen (not an employee), the speech must be a matter of public concern, and the right to free speech cannot be overcome by the governmental agency’s interest in efficient and effective operations.
To the contrary, employees in the private sector do not have a First Amendment right to free speech. This means an employee can be terminated for a distasteful water cooler conversation, publishing an opinion column in a local newspaper, or even for an objectionable bumper sticker.
While you may think this gives private employers unfettered authority, employers must ensure that adverse employment decisions do not violate other federal, state, or local laws. A non-exhaustive list of laws to consider include Title VII of the Civil Rights Act, the Americans with Disabilities Act, the National Labor Relations Act, state laws such as the Wisconsin Fair Employment Law, and the Minnesota Human Rights Act, Minn. Stat. 10A.36 which prohibits retaliation for political affiliation, and even local laws such as the Minneapolis Civil Rights Ordinance and the St. Paul Human Rights Ordinance.
Before making an adverse employment decision based on speech, a few questions employers must consider are:
- Are employees’ rights to share information protected by some other right, such as the right to unionize under the National Labor Relations Act?
- Is the company enforcing a prohibition on speech uniformly? For instance, are some employees allowed to express religion but not others would lead to the argument of religious discrimination in violation of the Civil Rights Act?
- Was the speech a report of suspected illegal activity or the violation of a company policy that could implicate Whistleblower Act protections?
Although First Amendment free speech rights are limited and/or nonexistent in employment, it is prudent for an employer to thoroughly analyze all facts to ensure that no federal, state, or local laws are violated prior to making an adverse employment decision based on speech. I also encourage employers to look one step beyond and ask whether an employee could make the argument that a law is violated. If an employee could make that argument, the employer should proceed with caution.
questions about this topic?
If you have any questions about the content of this article
or are looking for assistance in evaluating whether an adverse employment
decision is appropriate, please contact Labor & Employment attorney
Lida Bannink at 651-351-2116, or email at email@example.com.