One would be hard pressed to find someone who does not know that we are afforded free speech under the First Amendment of the United States Constitution. Similarly, we are also afforded the same right under the Texas Constitution Article 1 Section 8. Indeed, there are very few rights that are as well-known as the right to free speech, yet, the implications or effects that this fundamental right has in our workplace are often misunderstood and overestimated. My goal is to help clarify or shed light on a few misconceptions that I often see in my day to day practice.
First Misconception: Freedom of Speech Covers All Employees
Freedom of speech only protects us from government censorship. What this means for employees is that unless you are employed by the government, you are not afforded free speech protections under either the First Amendment or the Texas Constitution. Put another way, employees who are employed by a private company are not afforded free speech protections. This means that unless your speech is protected by another law, you can be fired for what you say in the workplace regardless if it is otherwise protected under the First Amendment of the Texas Constitution. This is probably the biggest misconception that exists that surround one’s freedom of speech.
Employees who are protected by the First Amendment and the Texas Constitution are federal employees and state employees. Additionally, employees of local governmental agencies like county and city employees are covered as well. Determining whether you are covered under the First Amendment or the Texas Constitution is the crucial first step in knowing your rights.
Second Misconception: Freedom of Speech Protects All Types of Speech in the Workplace
The second misconception is that freedom of speech protects anything you say in the workplace. After a string of decisions from the United States Supreme Court, it is crucial for speech to be a matter of “public concern” for it to be afforded any type of protection under the First Amendment or the Texas Constitution.
Unfortunately, what constitutes a matter of “public concerns” is a rather fact intensive question in which often times there is no clear answer. Indeed, courts generally look at the content, form, and context of a statement to determine if the speech is a matter of public concern. Generally speaking though, purely internal employee grievances, obscenities, and fighting words are not considered matters of public concerns. On the other hand, testifying in court or before the legislature, raising concerns about government inefficiencies and wasteful spending, complaining about policies that put the health and safety of the public at risk, and complaints of race discrimination have been found to be matters of public concern in many situations.
Ultimately, since this inquiry requires a fact intensive inquiry, that requires an experienced employment attorney’s assessment.
Third Misconception: My Speech is Protected Even if the Speech is Part of my Job Duties.
This third misconception that is probably even murkier than the second misconception. In short, in order to be protected by the First Amendment and the Texas Constitution, you must be acting as a “private citizen.” This means that your speech cannot be in the scope of your duties. For example, if your job was to notify your supervisor of safety concerns, your statements to your supervisor about safety concerns are most likely not protected speech since that is part of your job.
But this restriction unfortunately goes further. Things like using work stationary, your work email, following the chain of command, engaging in speech during office hours, and other similar factors weigh in favor of denying employees protection under the law.
As it stands now, if you are planning on engaging in protected speech my suggestions would be to attempt to distance yourself from your employer as much as possible. Engage in the speech outside of office hours, do not use your work email or stationery, and make sure to stress and highlight the fact that you are speaking as a concerned citizen and not as a representative of your employer. While these actions to not guarantee that a court will find that you were acting as a private citizen, they do weigh in favor of such a finding.
As can be seen from the above, determining whether or not your speech is protected or not is not always easy. In fact, it can be a rather nebulous area filled with trap doors and pitfalls. Especially since the majority of these rules have been created by judges from around the country. That is why it is important to get an opinion from an attorney that is experienced in employment law. The first step to a more equitable workplace is knowing your rights. Contact a Texas Employment Attorney today to set up a consultation.