Freedom Of Speech In The Workplace: The First Amendment Revisited
I spend a substantial amount of my practice on employment law issues, including workplace training on sexual harassment, discrimination and workplace violence. One question that frequently comes up during the training sessions is whether employees have freedom of speech in the workplace. The answer depends on whether the employer is a public or private entity, the type of speech involved, and the employee’s position.
No Constitutional Freedom of Speech in the Private Sector
Employees in the public sector – who work for governmental entities – have First Amendment rights in the workplace, subject to certain restrictions. The case law that has developed over time regarding First Amendment rights in the workplace has come from the public sector, as the government is directly affecting employees in public sector cases. There are no Washington cases that this author is aware of where freedom of speech has been protected under the First Amendment in private sector workplaces.
Other Freedom of Speech Issues in the Private Sector
On one level, a private sector employer could take the absence of a direct First Amendment right as providing free rein to discipline, terminate or retaliate against employees for their speech in the workplace. Before doing so, however, the private sector employer should take into account the effect of the anti-discrimination laws such as Title VII, RCW 40.60 (the Washington Laws Against Discrimination or “WLAD”) and various local laws. These laws provide a level of protection for certain types of expression in the workplace, and thus should be considered even if the right of speech associated with these laws is not a “First Amendment” right per se. For example, punishing an employee because of his religion is not technically a First Amendment violation in the private sector, but it would be a violation of the anti-discrimination laws. Conversely, the anti-discrimination laws prohibit certain types of expression on the part of employers, such as comments that constitute sexual or racial harassment, thereby putting a limit on “free speech” in the workplace.
The Bottom Line
Even though the First Amendment free speech criteria do not apply to private employers, determine if there is some other interest that governs the employee’s ability top speak freely. The following are some examples:
- Is this employee’s speech being restricted or punished because the employee is expressing religious or other beliefs that are different from the employer’s or from co-workers?
- Are employees of some religions or national origins allowed to express themselves regarding religion or national origin, but not others?
- Is the employee being punished for speaking a different language during lunch or breaks?
- Are the employee’s rights to share information protected by some other right, e.g. union regulations under the NLRB or PERC that allow employees to share salary information?
Additionally, determine whether the employer has a duty to restrict the employee’s speech. For example:
- Does the employee’s speech violate the anti-harassment or anti-discrimination laws, including local ordinances?
- Are other employees using speech or expression to retaliate against an employee for exercising his or her legal rights?
- Is the employee entitled to whistleblower protection?
By addressing the above questions, you should begin to develop a sense of whether the employee’s freedom of speech has been violated.
Specific legal problems need specific solutions. This article is a broad, general outline, and is not intended to provide legal advice, nor does it reflect the opinions of the author or her firm.