No Virginia, the First Amendment Doesn’t Protect Workplace Speech

I hope you all will indulge me today, as I discuss one of my personal legal pet peeves: a severe and significant lack of knowledge regarding the First Amendment to the Constitution, specifically, the right to free speech It seems that, unfortunately, we left some children (and adults) behind in civics/government class, because I find myself facing a significant misunderstanding of the First Amendment on a fairly frequent basis.  The First Amendment reads as follows:

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 a redress of grievances.

The First Amendment Doesn’t Apply to Private Employers

First, for all of you eagle-eyed readers, you’ll note that the First Amendment begins with the words “Congress shall make no law . . .”  In other words, a private employer is not required to respect an employee’s freedom of speech.  As a result, if you’re a private employer and in an at-will employment state (and most of you are), you can fire an employee for their speech.  In fact, you can take negative action against an employee for any kind of speech, whether it is political or not, or even if its innocuous.

For example, if you find out one of your employees is discussing hot-button political issues with customers, and you don’t appreciate such discussions, you can take action against the employee.  Or, in more extreme circumstances, you could terminate an employee because they say “good morning” to you every morning and, quite frankly, it never actually seems like a good morning to you.

So next time your employee, who is receiving a warning or maybe even being terminated for something he or she said, invokes the First Amendment, you can calmly explain to them that their employer is not a governmental entity and therefore isn’t required to abide by the First Amendment.

However, if you’re a governmental entity of any sort, including schools, the First Amendment protections apply and you need to be careful when addressing employee speech in the workplace.

Don’t Forget About the NLRB

Even though private employers are not required to respect free speech, the National Labor Relations Act does provide employees some protections for speech.  Employers are not permitted terminate, or otherwise take negative action against, an employee for discussing wages, hours or working conditions.  Even where a group of employees is complaining about work, to the point where common sense tells you should result in termination, the employee is likely protected.

However, if the employee is engaged in a one-person rant or is engaging in other speech that does not relate to workplace conditions, then their conduct is probably not protected by the NLRA.  The protected nature of speech under the NLRA has become a hot-button issue, with the crackdown on social media policies and reversals of terminations stemming from social media posts.

Unfortunately, the entire issue is still in flux, and seems to change every other week, so unless you follow the NLRB’s activity obsessively (nerd alert!), then it can be hard to know what you can and can’t do.

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Casey Sipe

Casey is a management-side labor and employment attorney with Caldwell & Kearns in Harrisburg, Pennsylvania, where he writes a labor and employment law blog, The Employer's Lawyer. He loves technology, social media, soccer and bow ties. Connect with Casey.


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