We all know that the First Amendment gives us the right to free speech. But, when it comes to the First Amendment, what you don’t know can hurt you.

TRUE: The First Amendment allows people to express their views.

FALSE:  The First Amendment protects employees from termination.

First Amendment protection and job protection are not intertwined. 

Many private sector employees fail to realize that their right to free speech does not prevent employers from limiting that speech.  Freedom of speech in the workplace protects public sector (i.e., government) employees.

Private sector employees have no rights under the First Amendment.  In fact, the few speech protections provided to private sector employees generally come from other laws such as anti-discrimination laws or the National Labor Relations Act.

And, Because Texas is an at-will employment state where employees can be fired for any reason or no reason at all – as long as the reason is not an unlawful reason – if the employee’s speech is not otherwise protected, neither is their job.

So, an employee might have a right to express their views, but at-will employment gives employers the ability to respond to those views as they so choose. And, an employer’s response to speech they don’t agree with, approve of, or condone may include anything from write ups to termination.   

But what if I wasn’t at work?

Workers should know that an employer’s limitations on an employee’s speech are not limited to comments made in the workplace but also extend to statements made by employees outside of work.

This means, a worker’s distasteful telephone conversations overheard by others or offensive posts on social media pages can be just as detrimental to their employment status as an offensive comment made at work in the break room.

What should I avoid saying? 

Because of at-will employment, private employers can greatly limit the speech of their employees.  Accordingly, employees should be familiar with employee handbooks and policies, pay attention to company culture, and avoid speech that is discriminatory or harassing.    

Employers may find rude jokes and profanity to be unacceptable.  In particular, offensive jokes or comments about race, color, national origin, religion, gender, age, disability, or sexual orientation is likely to elicit disciplinary actions from employers that want to protect other employees from discrimination, harassment, or a hostile work environment.  In fact, employers have a legal duty to take action when one employee’s speech violates anti-discrimination laws resulting in the discrimination against or harassment of other employees.

Additionally, private employers wanting to protect employees from discrimination and harassment may even choose to have their disciplinary actions encompass comments made outside of work.  This is becoming increasingly true, with opinions expressed and memorialized on social media platforms.

Avoiding discriminatory speech that would infringe upon the rights of others is a good practice for employees wanting to protect their employment.

What types of speech are protected at work?

Some speech is protected in the workplace.  Under the National Labor Relations Act (NLRA), employees are allowed to engage in “protected concerted activity.”  Accordingly, employees are allowed to communicate with one another in an effort to improve the terms and conditions of their employment.  Employees are protected when they discuss things such as pay, benefits, policies, and workplace safety. And, because this type of speech is protected, private employers may not discipline or terminate employees who engage in these protected activities.

Aside from protections under the NLRA, an employee’s speech might be protected under various anti-discrimination laws, such as Title VII of the Civil Rights Act of 1964.  For instance, an employer allowing certain religions to express themselves while restricting others or disciplining employees for speaking a different language may be in violation of Title VII and the Texas Labor Code.

Therefore, private sector employees do have some speech protections that come from laws other than the First Amendment.  When determining whether an employee in the private sector’s speech is protected under the law, it is always necessary to consider whether there is some other law or some overriding interest that protects the employee’s speech.

If you have questions as to whether your speech in protected under the law, you can contact our office to schedule a consultation to speak with one of our experienced Texas Employment Lawyers.

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Photo of Kalandra N. Wheeler Kalandra N. Wheeler

We asked Kalandra N. Wheeler, a Trial Attorney in the Houston office of Wiley Wheeler, P.C., to provide her sincere answers to a range of questions.  After reading, you will be more more abreast with the understanding and competency that Ms. Wheeler

We asked Kalandra N. Wheeler, a Trial Attorney in the Houston office of Wiley Wheeler, P.C., to provide her sincere answers to a range of questions.  After reading, you will be more more abreast with the understanding and competency that Ms. Wheeler brings.

1.Why did you start practicing labor and employment law?

I wanted to be able to help people that otherwise might not find help. Labor and employment laws affect most of society.  And – whether our results help one or many – our work and efforts as employment lawyers touch people in a real way in their every day lives.

2. Who is your favorite Supreme Court Justice?

Thurgood Marshall.

3. What do you think is the most important part of a good case?

The client. Good facts and evidence are definitely important. But good clients are a lawyers’ most valuable asset.  A good client: (1) is invested in their case; (2) works or worked hard for their employer; (3) can tell their story clearly and concisely; and (4) is someone that a jury will find sympathetic and relatable.

4. If you could write a new law, what would it do?

The Texas Workplace Anti-Bullying law.  I hear the stories, the ones told by employees looking for help. And in far too many of those stories the law offers no solution.  Every employee that goes to work and works hard to do the job they are hired to perform should be able to do so without abuse, harassment, and bullying. There is no justification for bullying, not in our schools, and not in our workplaces.

5. Besides Rob Wiley, P.C., what is the most interesting job that you have had?

For a year before law school, I worked as a lube tech for Jiffy Lube.  I spent hot summer days, working on hot cars, changing oil or flushing transmissions or radiators.  I never had a customer come back with a complaint.

6. How do you market yourself differently than others?

I tell clients what they need to hear, not necessarily what they want to hear. Before a client begins down any path toward resolving an employment dispute, they need thoughtful, honest advice. I am a believer in justice and everyday people deserve competent representation in an arena that is difficult for non-lawyers to navigate.

7. What do you do when you’re not practicing law?

I spend time with family and friends.  I read true crime books.  I sew and draw.

8. How would you describe the color yellow to someone who could not see?

It’s not the intense heat of the sun during the month of August, but instead the softness of the sun on your skin just as the seasons change from Summer to Fall.  It’s warm. And soft to the touch.  It’s fresh squeezed lemonade with a hint of sugar.  Slightly cool, inviting, and happy.

9. What’s your favorite legal TV show?

Law & Order: SVU

10. If you could argue any case in history, what would it be?

The Karen Silkwood case. But really, I think that would be more about arguing and trying a case alongside Gerry Spence for the learning experience.

Kalandra N. Wheeler is a Trial Attorney in the Houston office of Wiley Wheeler, P.C.  She graduated from The University of Houston with a bachelor’s degree in political science.  Ms. Wheeler went on and received her law degree from The University of Arkansas.