Leslie A. Farber
Freedom of Speech is Limited in the Workplace
Updated: Jul 3, 2019
Freedom of speech is one of America’s most fundamental and cherished rights. However, recent events such as the firing of a Google employee who wrote a memo referencing gender stereotypes; and the actions taken by sites like Facebook to police extremist content, have raised questions about free speech and the protections offered by the First Amendment to the U.S. Constitution.
One of the most common misunderstanding surrounds the rights of employees to speak freely in the workplace. Employers have grappled with this issue for decades, from negotiating with labor unions regarding speech-related terminations to developing policies pertaining to what employees can post on social media. Despite the debates taking place in boardrooms and courtrooms across the country, the fact is the First Amendment grants no constitutional rights or protections to private-sector employees.
Adopted into the Bill of Rights in 1791, the First Amendment protects the right to freedom of religion and freedom of expression from government interference. In other words, it specifically limits the federal government’s ability to suppress free speech. Courts have subsequently extended this prohibition to all federal, state and local government officials by virtue of the Fourteenth Amendment to the U.S. Constitution. The New Jersey Constitution and New Jersey Civil Right Act also protect freedom of speech for government workers.
This means that people employed by the local, state and federal government do have protection from retaliation for exercising certain First Amendment rights, but this protection does not apply to private employers. In fact, the courts have consistently held that private employers can significantly curtail employee free speech rights.
As is often the case, the laws surrounding these issues are complex and not necessarily absolute. For example, the National Labor Relations Act (NLRA) of 1935 protects certain types of speech in the workplace that relate to group efforts to improve working conditions. However, the NLRA has significant limitations. While it protects work-related complaints that an individual makes on behalf of other employees or in an effort to initiate group action, it does not protect such complaints when made solely by and on behalf of individual employees.
In the past, unions also protected the free speech rights of workers by negotiating contracts that limited an employer’s ability to terminate employees without a performance-related rationale. However, today the majority of private sector workers fall under the doctrine of “at will” employment, which allows employers to fire them at any time for any reason as long as it is not deemed illegal.
Private sector employees need to understand that, as a general rule, they are not entitled to First Amendment protection, even when speaking about job-related matters results in adverse employment action. Private employers can prohibit employees from speaking about specific work and non-work-related topics during business hours, and have every right to take action against employees who engage in speech that is offensive, violates anti-harassment policies or creates a hostile work environment.
According to Google, an employee in question was terminated for expressing views that are not aligned with the company’s values, code of conduct and policies against harassment and discrimination. As a private entity, Google can establish and enforce whatever values it chooses.
While employees may not have the right to say anything they want in the workplace, it is important that employers focus on establishing policies and procedures governing free speech that support employee engagement and promote a positive work environment. Employers have a responsibility to discipline or terminate an employee whose speech in discriminatory, impacts job performance or does not reflect company values. It is just good business. However, overly restrictive policies can lead to declines in motivation, morale and productivity.
We assist both employees and employers in understanding and navigating the rights of free speech in the workplace. When you are ready to consult with a qualified employment attorney, please call me with your questions or concerns at 973-509-8500 x213 or email LFarber@LFarberLaw.com.
The contents of this writing are intended for general information purposes only and should not be construed as legal advice or opinion in any specific facts or circumstances.