Freedom of Speech In and Out of the Workplace

By Patty Chen, Esq.

In this age of social media and the current climate in America, people are engaging more and more in political discourse in the workplace and outside of it. There has been increasing pressure for employer to fire, or otherwise take some negative action against, an employee for comments the employee made that were caught on social media. However, the Constitution, in particular its First Amendment, protects the right to freedom of speech, the right to peacefully assemble and the right to petition the government for a redress of grievances.

But, the actions of an employer are not necessarily covered by the Constitution. An employer may be able to fire an employee for speech outside of the workplace if certain factors are met. This is a very fact-intensive analysis which requires an investigation of the specifics at hand and may require further legal analysis and research.  The following provides a basic framework to evaluate this issue, first, for public employees and, second, for private employees.

FOR PUBLIC EMPLOYEES

Who are public employees?

Public employees are individuals employed by a government agency, including municipal, county, state and federal agencies, and state colleges and universities.

Are public employees protected for by the First Amendment?

An employer cannot retaliate against a public employee for speech involving matters of “public concern”, which is protected under the First Amendment.

What is a matter of “public concern”?

A matter of “public concern” is anything related to a matter of political, social or other concern to the community. The Supreme Court has found the following topics to be matters of “public concern”:

  1. the allocation of school funds, and the school administration’s methods of informing, or not informing, the taxpayers of the real reasons why the administration was seeking additional tax revenues for a school,
  2. testifying before a state legislature,
  3. testifying in a court of law,
  4. a memorandum relating to teacher dress and appearance that the school principal had circulated to various teachers at a public school,
  5. statements concerning a school district’s allegedly racially discriminatory policies,
  6. speech criticizing government inefficiency and waste, not as an aggrieved employee, but as a concerned citizen,
  7. staff psychologist criticizing a hospital for unnecessary psychotropic drugs, failing to provide safe working conditions, and inadequately supervising a penal code patient,
  8. the manner in which police and fire fighters performed upon a particular occasion,
  9. adequacy of funding for emergency services,
  10. environmental violations at wastewater treatment plant, and
  11. an elementary school teacher claiming that she was fired for inviting actor Woody Harrelson to come speak to her class about the environmental benefits of hemp.

What if protected speech is part of a public employee’s job?

An employer can control what an employee says on the clock about matters of “public concern” if the protected speech falls within the public employee’s job duties. But, an employee can engage in protected speech once they have (1) clocked out and (2) started speaking in a forum where citizens’ engage in matters of “public concern”.

FOR PRIVATE EMPLOYEES

Are private employees protected by the First Amendment?

Because the Constitution limits the actions of the federal government, and the 14th Amendment only extends Constitutional protections to state and local governments, private employees do not enjoy the same protections as public employees with respect to protected speech.

Do private employees enjoy other protections?

Private employees still enjoy protections against discrimination and retaliation by their employer. For example, an employer cannot allow one employee to express their religious beliefs while prohibiting another employee from expressing a different religious belief. Similarly, an employer cannot reduce an employee’s hours or take some other negative action against an employee for expressing their religious beliefs.

There are also state law that provide some protections regarding speech in and out of the workplace. In California, the California Labor Code section 1101 prohibits employers from implementing any rule, regulation or policy “forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office” or “controlling or directing or tending to control or direct the political activities or affiliations of employees.” The California Labor Code section 1102 provides “[n]o employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.”

To discuss the above topic, please contact Patty Chen at patty@encorelaw.com, or any other Encore Law attorney.

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