Workplace Speech & the First Amendment

Your employee says something on social media that negatively impacts your business.  Can you fire them?  A common misconception is that the First Amendment protects all employee workplace speech.  It does not.

The First Amendment generally protects workplace speech by government employees. Employees in the public sector – who work for governmental entities – have First Amendment rights in the workplace, subject to certain restrictions. Private sector employees do not have the same workplace First Amendment protections, thus the First Amendment does not allow them to say what they like at work free of any workplace consequence.

However, the analysis does not end there. Employees may find some protection under a variety of other laws. For example, the National Labor Relations Act (NLRA) which protects speech in furtherance of “concerted activities for the purpose of collective bargaining or other mutual aid and protection." In some circumstances, sharing salary information could be protected speech under the NLRA- but in others, sharing that type of information can be unprotected and grounds for termination.

The takeaway? Be careful before you terminate an employee for something they post online- the analysis is rarely simple, and includes more considerations than the First Amendment.