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.