“I’m speaking my mind because I have a right to free speech.” We’ve all heard that haven’t we? In the words of Lee Corso: “Not so fast, my friend.” The First Amendment gives protection from governmental action. So, in most circumstances, federal, state, and local government employers (i.e., public employers) cannot take action against employees for their speech on a matter of public concern. No such protection applies to private sector employers and their workforce. When an employee speaks his mind, in many circumstances private employers may take employment action against him.  

Public Sector Employers

The First and Fourteenth Amendments of the United States Constitution apply to public sector employers and, therefore, protect the speech of public sector employees in certain circumstances. In 2006, the United States Supreme Court made clear in Garcetti v. Ceballos that if the speech is made by a public employee as part of his or her job, it is not protected speech. On the other hand, a public employee acting as a citizen speaking on matters of public concern may be protected. Even so, public employers may limit such speech if the employer’s interest outweighs the employee’s interest in free speech. For example, if a public employee’s speech substantially interferes with his or her work performance or the harmony of the workplace, the public employer may prohibit such speech or discipline the employee for engaging in that speech.

Private Sector Employees

For private sector employers, there is more freedom in the action(s) an employer may take. However, whether an employee’s speech at work (or even outside of work) is protected depends on where the employee is and what the speech is about.

Location matters. Some states, like New York, have laws protecting an employee’s right to free speech outside of work hours, but many states (like Alabama, Texas, and Tennessee) have no laws addressing this topic and are at-will employment states. Private employers in at-will employment states without applicable speech laws may take disciplinary action against their employees for nearly any speech, including speech that the employer believes reflects poorly on the business or is disrupting the business. One caveat: Such action must not be in violation of federal or state employment laws, like Title VII or union contracts.

Content matters. While private employers may prohibit speech (both at work and away from work) that threatens violence, promotes divisiveness, or is sexist, racist, or otherwise discriminatory, they cannot prohibit speech that relates to an employee’s right to engage in protected concerted activity.  The National Labor Relations Act protects employees’ rights to discuss the terms and conditions of employment or pay with their coworkers. Private employers also may not act against employees for reporting actions they believe are in violation of federal or state whistleblower laws or for making a good faith report of violations of Title VII, the ADA, ADEA, USERRA, GINA, and OSHA.

Best Tips for Private Employers Navigating Speech Issues

But, even if you can terminate an employee for speech, should you? Here are some tips for private employers to navigate the tricky speech situation when they learn of an employee’s potentially problematic speech.

• Gather relevant information related to the speech.
  • When did the speech occur?
  • Who is speaking – the employee or his or her family member?
  • How is it impacting my business?
  • Am I receiving calls from the general public about this employee’s speech?
  • Am I receiving complaints from coworkers about the speech?
  • What is the message — is it violent or threatening?  
• Review your company’s policies.
  • Does this speech violate any policy?
  • If so, what does the policy say as to discipline and how have you applied it in the past?
  • If it does not violate the policy, does the employee’s speech go against the company’s mission?
  • Is there an employment or union contract that protects this activity or limits disciplinary action in some way?
  • Is the speech disrupting my business?
• Talk with the employee.
  • If it is a social media post, is the employee willing to remove it?
  • If it is a family member, such as a child or spouse, will the employee speak with the family member about removing the post?
  • What action is the employee willing to take to address your concerns?
• After talking with the employee, decide the appropriate action.
  • Does the employee’s proposed action help the business move forward or is the aftermath of the speech too harmful for the business to overcome without terminating the employee’s employment?
  • Make sure any action taken is in alignment with past practices. For example, if you take action against an employee for political speech, make sure you apply the same standards to employees of a different race, sex, age, etc.

Consider also whether you want to proactively monitor an employee’s speech away from work. If you choose to do so, make sure you are monitoring in a non-discriminatory and non-retaliatory manner. If you have questions about implementing any speech-related policies or are navigating this tricky issue, call your favorite employment lawyer.