We all know freedom of speech. With the right to speak our minds, many discussions have been opened up on matters – some sensitive – without anyone getting in trouble. Americans, for the most part, like exercising this right. More importantly, the First Amendment guarantee of freedom of speech, which is a part of the Bill of Rights, is what most people will cite as their authority to say what they want. However, what not many people know is that you cannot exercise freedom of speech everywhere. In fact, you might not be able to exercise it fully at your workplace.
Many employees believe that they have the freedom of speech up to its full extent at work – no, it’s quite limited, actually. It is usually just right or perfectly legal for a company or an employer to file a legal action against an employee over something they wrote or said.
Politics is a hot topic in the workplace. People talk about politics and are becoming increasingly vocal. However, as much as people like to express their thoughts and concerns about politics in the United States, they may have to check with what the law says about political speech and other related activities. The following sections will walk you through what you need to know.
What You Can and Can’t Do Under the First Amendment
Technically speaking, the First Amendment prohibits Congress from passing a law that limits a person’s right to express or speak out in the way they choose. Throughout the years, this included additional initiatives at the state and federal levels.
Like any other law, it’s not absolute. This gives you protection from government actions.
For example, the police cannot arrest you just because you wore a pin or carried a banner supporting a specific political candidate. However, your employer can fire you for the same thing. There are exemptions to these situations. Here are some examples.
When Your Employer is The Government
Employees of the federal government have more freedom when expressing themselves compared to those working for a private employer. This does not mean that employees can get away with saying or doing anything. For federal employees to have free speech protection, the situation must fall under these conditions:
1. The issue they spoke or did something about is a matter of public concern. If what he or she says can be considered a legitimate news topic and they express it as a regular citizen instead of an employee of the government, then their speech can be spared from government-employee interference.
2. Their practice of free speech can be considered a valuable public service then this outweighs government-employer interest. The employee needs to speak about topics that concern the public significantly. If the matter prevents the employee from carrying out their roles properly then free speech protection will not be applicable.
For example, you cannot get fired for supporting the political rival of your superior. Even liking a post about the candidate cannot be grounds for firing you because it does not disrupt your role or function. Unless your support does, then it can turn out otherwise.
If the speech of the employee is about his or her right to self-organize for collective bargaining, then it can be challenging for the employer to prohibit such type of speech. Sections 7 and 8 of the National Labor Relations Act (NLRA) protects such type of speech. It falls under “concerted activity.” The term refers to two or more employers working together to protect or help each other about employment terms or conditions.
However, one exception is whether the speech of the employee is so abusive that it can be considered “opprobrious.” This time, NLRAs’s protection on concerted activity speech may not be applicable. However, restrictions on concerted activity speech are quite loose.
When the Actions of the Employer Affect a Specific Group of People
If the employer enforces a lawful restriction that affects only a specific group of people, then the policy can be considered illegal discrimination. For example, if the employer imposes a ban on wearing a certain brand of apparel because it thinks that the support of the employees who wear it can interfere with their work or it can be overly political then this can fall under unlawful discrimination.
State Law Is Different
The Constitution counts as the supreme law of America. However, states can still create their laws with additional protections and rights. There are states with laws banning employers causing adverse employment actions based on political speeches of employees said outside of work. For instance, in California, employers should not discriminate against people based on their political affiliation or activities. In Colorado, the law prohibits employers from preventing employees from participating in political activities.
Even Legal Actions Can Be Bad
While employers can choose to restrict free speech rights, this can’t be too good for business. Yes, it is legal but if employees are under so much repression then they may feel frustrated, leading to more problems. Employees who can’t speak up can be resentful and unproductive. Such restrictions may also lead to a drop in sales and support from the workforce. Some employees may leave or choose to boycott the company. Otherwise, it is not sustainable for a business. Employers need to weigh the restrictions they impose, striking a balance between giving employees enough room to practice free speech but also keeping those comments in line and appropriate to running a business.