What's Protected Speech at Your Workplace?

Lesson one: Don’t make your complaints on Facebook or Twitter

Let’s say you notice some unlawful activity at your job—anything from sexual harassment to unsafe working conditions—and you make a complaint through the proper work channels or to a government agency such as the U.S. Equal Employment Opportunity Commission. That is considered protected speech. If you got fired for it, you would probably have a good case.

“The law also protects employees who seek to exercise certain rights such as requesting accommodations for a disability, taking medical leave, or taking statutorily mandated paid sick leave,” says Alejandro Ruiz, an attorney at Payne & Fears in Irvine, who typically represents employers and businesses.

But let’s say after you make the complaint nothing immediately happens, and two weeks later you grow frustrated and sound off on Facebook or Twitter.

“It would significantly weaken the case,” says Samuel P. Nielson, an attorney at Sessions & Kimball in Mission Viejo, who represents employees. “Because the company could say, ‘Look, we were investigating. We were taking action internally. Just because it’s not going as fast as you may have liked, you can’t go and blast it.’”

Complaints on social media aren’t considered protected workplace speech, Nielson adds. “What’s their complaint? Are they trying to really remedy the situation?” he asks. “Some might say, ‘Yes, we’re trying to do that. That’s why we’re letting this be known so an investigation can occur.’ But that’s not what the law provides. The law in California, in particular … it’s a narrow scope of people you can make these protected complaints to. Always to a government or law enforcement agency. Those will always be protected.”

And even if you file your complaint properly, there are no guarantees. “Generally, suffering an adverse action shortly after engaging in protected speech or activity is enough to get someone through the courthouse door,” says Ruiz. “But it won’t be enough to win the case—especially if the employer can establish an independent, legitimate business reason for the action it took that is unrelated to the protected speech/activity.”

Both attorneys anticipate an increase in cases arising from the COVID-19 pandemic.

“We may increasingly see an uptick—particularly at food-processing places, distribution centers and warehouses—if there are complaints workers are making about unsafe conditions,” says Nielson. “That, I think, will be how COVID-19 will impact us the most. I think some employers won’t realize those are protected complaints, because workers are complaining about their safety and well-being.”

That said, doesn’t the economic downfall from a global pandemic establish a legitimate business reason for layoffs? “Right,” says Nielson, “but that’s where you’re going to get into the nitty-gritty of, ‘Well, what’s your position at the company?’ I mean, if you’re the only quality control individual at a plant, and the plant is still running, you’re basically an essential position. So if they’re terminating you, that would at least raise flags in my mind.

“Things like that,” he adds, “is where it’s going to cause a lot of employment lawyers to evaluate and examine, ‘What is going on?’”

Just keep it off Facebook.

For more information and articles for legal professionals navigating COVID-19 as it relates to their law practice and clients, visit FindLaw’s COVID-19 resource center or visit superlawyers.com/articles (search for COVID-19).  

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