While the First Amendment protects freedom of expression, speech, religion, press, assembly, and petition, these rights are not absolute in the workplace. Various factors, such as whether you work for a public or private employer, can significantly influence the scope of your protections. Learn when your First Amendment rights apply at work to obtain a fuller understanding of your rights.
We must first understand what the First Amendment protects before diving into the ins and outs of how it applies at work. Simply put, the First Amendment primarily safeguards individuals from government interference in their freedom of speech, religion, press, assembly, and petition. Therefore, the government can’t create laws that unduly restrict these forms of expression.
It’s crucial to remember that these protections mainly apply to public-sector employees rather than those in the private sector. Public workplace employees have certain protections from retaliation by their employer for exercising their First Amendment rights.
However, this protection only applies if their speech addresses a matter of public concern and does not interfere with workplace efficiency or harmony. Conversely, private-sector employees have relatively limited First Amendment protections as the law does not consider private employers to be government actors.
Understandably, there might be some confusion regarding public versus private employers and who falls under which category. Public employers include any governmental entity or organization. Examples include federal, state, and local government offices, public schools and universities, law enforcement agencies, and municipal departments such as Parks and Recreation. For instance, teachers working at a public high school or clerks employed by the city government are public-sector employees and thus have broader First Amendment protections.
On the other hand, private employers encompass businesses and organizations that governmental entities do not operate. These types of businesses include corporations, non-profit organizations, small businesses, and private educational institutions. Employees at companies such as Google, Walmart, or privately owned local restaurants fall under the category of private-sector workers. Because private employers aren’t government actors, they have more leeway to set and enforce their own policies regarding speech and expression in the workplace.
Because public employees have more robust protections, the First Amendment protects their freedom of speech in many scenarios. For instance, a teacher in a public school may speak out during a community meeting about budget cuts affecting educational resources. Their speech will receive protection if it pertains to a matter of public concern, such as the quality of education, and doesn’t disrupt the school’s operations or negatively impact relationships among colleagues.
Similarly, a government employee may write an op-ed in a local newspaper criticizing public spending priorities. The law safeguards their right to express such viewpoints as long as the content doesn’t interfere with their work performance or workplace harmony .
This protection stems from the principle that public employees retain certain constitutional rights because public employers are extensions of the government, which must respect those rights. However, your speech must strike a delicate balance; overly disruptive or irrelevant statements might not receive protection. For example, the context and potential disruption to the workplace may lead to justified disciplinary actions if a public sector employee uses their work email to send politically charged messages.
The interplay between First Amendment rights and company policies becomes crucially significant in the realm of private employment. Private employers possess considerable authority to regulate speech within the workplace to preserve an efficient and productive environment. Consequently, employees must understand that the First Amendment doesn’t shield their expressions, particularly those made on the job.
For instance, a company can discipline or terminate an individual without infringing on their constitutional rights if the individual criticizes their employer or discloses proprietary information on social media. However, private employees are not entirely devoid of protection. Other legal provisions, such as the National Labor Relations Act (NLRA), may protect certain types of speech, such as discussing work conditions or wages.
Now that we have a better idea of what protection means in the public and private sectors, when do your First Amendment rights apply at work? Under the NLRA, employees in the public and private sectors can talk about their salaries, working conditions, and union-related activities without fear of retaliation. This type of speech is known as “concerted activity,” which the NLRA aims to protect, recognizing the importance of collective employee action in addressing workplace issues.
Moreover, whistleblowing is another form of protected speech. The First Amendment protects employees who report illegal activities, safety violations, or other forms of misconduct to the appropriate authorities from employer retaliation. These laws encourage employees to speak out against injustice while safeguarding their position within the workplace.
As we’ve learned, the First Amendment doesn’t protect you from any and all consequences if you decide to say whatever you please. For example, the First Amendment and other legal provisions will not protect an employee engaging in speech that includes threats, harassment, or discriminatory remarks toward colleagues.
Many believe that the First Amendment allows them to say anything, and while the proper authorities may not arrest you for saying whatever you feel, this doesn’t mean there aren’t consequences. Employers maintain the right to enforce policies that promote a safe and respectful work environment, and speech that undermines these principles can result in disciplinary action or termination.
Spreading false information about the company, its employees, or its clients can also lead to serious repercussions, including defamation lawsuits. Additionally, the inappropriate use of company resources, such as utilizing work emails or communication platforms for non-work-related or politically charged messages, can disrupt workplace harmony and productivity.
Even though your employer should know how to balance workplace policies with your First Amendment rights, this isn’t always the case. All too often, employers penalize employees for speaking out, even when fully protected. Many of these cases involve women speaking out against employers for harassment, abuse, or discrimination and receiving unjust punishment.
Our feminist lawyers at the Law Firm of Tamara N. Holder dedicate themselves to upholding women’s rights and the rights of all employees equally. We recognize that navigating the complexities of speech rights and workplace policies can be daunting, but our commitment to helping you understand your protections and advocating for your rights is strong. Remember, knowing your rights is essential for protecting them effectively.
