Free speech at work? Usually not, but here are 7 exceptions

Oct 03, 2022

4 mins

Free speech at work? Usually not, but here are 7 exceptions
Beth Braverman

Beth Braverman is a freelance journalist based in New York

Free speech is among the most treasured protections offered to Americans in the US Constitution.

Nearly all Americans (98%) see free speech as one of their most important rights, and 6 in 10 say it’s extremely important, according to the Knight Foundation. It states:

“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 redress of grievances.”

But when it comes to what you can say at work, in most cases the First Amendment doesn’t apply.

“The most important thing for employees to know about free speech at work is that it doesn’t exist,” says Lew Maltby, head of the National Workrights Institute. “Freedom of speech comes from the Constitution, which doesn’t apply to private corporations.”

While the first amendment and most state constitutions protect you from government punishment, that doesn’t extend to discipline from your employer. In most states, private workers can face termination for saying anything that their boss doesn’t like.

“People have been fired because their boss didn’t like the presidential candidate on their bumper sticker, for a statement made at a political rally, and even for rooting for the wrong football team,” Maltby says.

While those are extreme examples, the biggest takeaway for workers is to understand their employers’ policies around social media posts.

“The most common way bosses censor employees is for what they say on the internet,” Maltby says. “Telling off-color jokes or criticizing organized religion are especially dangerous.”

That said, there are a handful of situations where companies’ rights to restrict free speech are limited. Here’s a look at a few common circumstances in which you might have more protection under the law:

1. You live in a state with additional protections

Some states and municipalities may have additional statutes and ordinances relating to free speech. New York, Colorado, and North Dakota, for example, have rules protecting you from being fired for speech made when you’re off duty (such as on social media posts).

In New York, an employer can’t take any type of action or discriminate against an employee engaging in legal conduct off-duty, says labor and employment attorney Jonathan Bell, founder of Bell Law Group PLLC.

“For example, if after work someone goes on social media and makes political posts the employers doesn’t agree with, as long as they don’t violate any laws, New York State labor laws protect them,” Bell says.

Similarly, workers who post about using marijuana while off-duty would have protection, now that cannabis is legal in New York. On the other hand, if a worker were trespassing while protesting on their own time, an employer would be able to fire them because the trespassing was illegal.

“It’s a fine line,” Bell says.

2. You’re trying to unionize

Regulations from the National Labor Relations Board (NLRB) require that employees be allowed to discuss unionizing.

That’s particularly important right now amid a growing movement among workers across the country to unionize and increase pay transparency.

However, it’s worth noting that the law doesn’t always provide the protections intended, and some employers can circumvent regulation by suggesting that the worker speech is untrue or causing disruption in the workplace. Plus, worker advocates say the current enforcement lacks teeth.

“The penalties are so trivial that employers routinely break the law,” Maltby says.

3. You’re comparing salaries or talking about working conditions.

Even if the level of conversations doesn’t rise to unionization, the NLRB considers them “concerted activities” and it protects employees engaging in such discussions, although there are some limitations, including that conversations cannot occur during work time. This extends to employees who disseminate petitions on these issues as well. Salary discussions at work also enjoy protection from the Equal Employment Opportunity Commission (EEOC).

4. You’re a whistleblower.

Federal law protects workers who become aware of fraud or unsafe working conditions and bring that information to the media or to regulators. However, again in this instance, Maltby says the protections are fairly limited.

“Whistleblower laws theoretically protect your right to speak up about corporate misconduct,” Maltby says. “But the protection is so narrow that only a saint or an idiot blows the whistle.”

5. You are concerned about safety or harassment.

The U.S. Department of Occupational Safety and Health Administration (OSHA) gives all workers the right to a safe workplace. If you believe that your workplace is unsafe, you have the right to complain to your supervisors and make a report to OSHA without fear of retaliation. In addition, workers have the right to request an OSHA inspection, report any work-related illness or injury, and see their own medical records related to illness or injury.

Similarly, the EEOC protects workers who report harassment or discrimination from retaliation in the workplace.

6. You have a contract or collective bargaining agreement providing additional protections

In every state but Montana, workers in the US typically work under “at-will” employment agreements, which means that the employer can fire the worker at any time for any reason (and the worker can quit at any time for any reason).

However, some employees work under contracts that require the employer to show “just cause” for firing. If this is your situation, your employer would have to show that your speech negatively impacted your work performance or posed a threat to their business interests in order to fire you.

A few municipalities also have restrictions on at-will employment arrangements for specific workers. For example, New York City has additional protections for fast food workers and Philadelphia has additional protections for parking attendants, according to a recent report by the Economic Policy Institute. The New York City law requires that employers have “just cause” to fire fast-food workers and that they must show the worker’s performance has been unsatisfactory or their activities are “materially harmful” to the employer’s business.

7. You work for the federal government.

Regardless of which state you live in, if your employer is the federal government, you may have more protection over speech at work. In that case, you have protection for anything you say as a citizen (as opposed to as an employee) as long as what you’re saying does not impact your employer’s to continue delivering their services.

The takeaway:

In most cases, your right to free speech doesn’t include the right to keep your job if you make statements your employer disagrees with at work or even public statements outside the workplace. In some cases, employers have even argued that their inability to restrict workers’ free speech is a restriction on their own free speech.

Protect yourself by reading any policies your company has shared around free speech (such as those found in an employee handbook) and by learning whether there are any state or local laws applicable to your situation.

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