It’s a free country, so employees can express themselves however they want at work, right? Wrong.
Only employees in the public sector—those who work for government entities—have First Amendment rights in the workplace, subject to significant limitations.
In private-sector workplaces, employees enjoy no such specific right. There’s no broad “privacy law” that some think exists to protect everything employees say or do from adverse consequences.
Just recently, an Ohio hospital employee sued after he was fired for viewing nude photos at work.
He argued his termination violated his First Amendment right to free speech.
The court dismissed his case, saying free speech rights are only granted explicitly to government employees, not in the private sector. (Moore v. University Hospitals, No. 1:11-CV-508, SD OH, 2011)
Important point: The absence of a direct First Amendment free speech right does not give employers free rein to discipline or retaliate against workers for their speech or actions. Certain laws do provide employees with some protection for certain types of expression at work.
For example, the National Labor Relations Act (NLRA) says workers in both union and nonunion workplaces are free to discuss pay, benefits and other work conditions without retaliation.
Title VII of the federal Civil Rights Act and several other laws give workers the right to voice complaints—free from retaliation—about perceived workplace discrimination, harassment or other injustices.
And several whistle-blower laws give employees protection to speak out against perceived illegal injustices they see at work.
Final note: Regarding the case mentioned earlier, looking at nude photos at work would not likely have been considered free speech even if it occurred at a public workplace. That’s because the exercise of free speech has to involve comments on matters of public importance, not the right to view nudity for nudity’s sake.
- Remember, you—not employee—choose ADA accommodation
- Counter retaliation claims by tracking PHRC and EEOC filings, internal complaints
- Employer liability for defamation claims based on a reference
- To prevent retaliation claim, check back within weeks following employee's complaint
- How to develop an employee handbook that avoids liability