Is Workplace Speech Protected?

So how do you really feel about the election? 

You might want to reconsider sharing potentially polarizing opinions at work or on social media—particularly if they become supercharged. 

Houston-based labor and employment attorney David Quan often works with private companies to establish their social media guidelines, ensuring “that employees are not making any official statements on behalf of the employer.”

Quan says an employee would have to post something pretty extreme before he would advise an employer to take any kind of punitive action. “It would have to get to a point that the comment is so offensive that it would be obvious—like advocating some type of physical violence against a celebrity, politician or co-worker,” says Quan.

It doesn’t help that we live in such contentious times. “We’ve got a very controversial election coming up,” says Quan. “Employees may be wondering, ‘How much can I endorse my position?’ Most people agree that there can be almost a tribal attitude toward whatever position a person has, and it can get pretty inflammatory.”

When it comes to speech protections based upon the First Amendment, matters are different depending on whether you’re a public or private employee.

“Unlike private employees, public employees actually have some First Amendment protections,” says Melinda Arbuckle, an employment & labor attorney at the Wage and Hour Firm in Dallas. That’s because the First Amendment only protects individuals from government action, not a private employer’s actions.

“Employers have First Amendment rights,” Arbuckle adds, “but private employees do not in relation to their employers.” These employer rights are protections put in place in the 1970s that cover commercial speech: such as an employer’s right to advertise products and engage in public statements. “But if a private employer wants to penalize an employee for their speech, they can—with certain exceptions—do that,” she says. “For instance, if an employee posted something racially insensitive on their [personal] social media account. That can reflect badly on the company.”

So what workplace speech is protected? “Reporting discrimination is one of them,” Arbuckle says. Another example is when employees compare how much they’re paid or discuss the quality of their work conditions. That speech is protected under the National Labor Relations Act. 

While people generally understand the concept that their employers have a say over how they behave at work, it’s what Arbuckle calls “the outlier issues” that are often confusing. “It’s the outside-of-work conduct that really gets people,” she says.

Consider the case of Juli Briskman, a Virginia cyclist who flipped off then-president Donald Trump’s motorcade in 2017. A press photographer captured the image, which went viral, and Briskman was eventually fired by her private employer. The company said she violated its social media policy even though she was not at work at the time and did not post the photo herself. 

Adding to the confusion is the generational divide. “We have a current generation coming into the workforce right now who have grown up in a social media environment that’s very different from what previous workers had,” says Quan. “Younger employees are used to being able to say things more independently. That could lead to more tension—where an employer’s ability to enforce their policies may conflict with employees’ feeling like the ability to express themselves is just a given of how life should be.”

“People always say, ‘It’s a free country,’” Arbuckle says. That’s mostly true, but one should still be mindful. “I see people doing crazy stuff, and they don’t know it’s crazy, like using their work email to contact a law firm. From my perspective as an attorney, I think, ‘What are you doing?’”

“Younger employees are used to being able to say things more independently. That could lead to more tension.” —David Quan, employment and labor attorney