Are Employee Complaints Protected Speech?
Making complaints through social media will likely hurt your case
By Erik Lundegaard | Reviewed by Canaan Suitt, J.D. | Last updated on May 14, 2024 Featuring practical insights from contributing attorneys Alejandro G. Ruiz and Samuel P. NielsonUse these links to jump to different sections:
- Make Complaints Through the Proper Channels, Not Social Media
- How Employee Complaints Are Resolved
- Legitimate Reasons for Terminating an Employee
- Find Experienced Legal Help
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 (EEOC). That is protected under federal law—your employer cannot retaliate against you for filing a complaint.
“Federal law also protects employees who seek to exercise certain employee 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.
Make Complaints Through the Proper Channels, Not Social Media
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 X, formerly 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, violating the employer’s policy.’”
Complaints on social media aren’t considered protected employee 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… [has] 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.”
How Employee Complaints Are Resolved
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 or activity.”
Both attorneys anticipated increased cases arising from the COVID-19 pandemic and similar public health crises. For example, “At food-processing places, distribution centers, or warehouses, [an uptick in complaints would be expected from] workers… about unsafe conditions,” says Nielson. “That, I think, will be how COVID-19 will impact [employment law attorneys] the most. I think some employers won’t realize those are protected complaints because workers are complaining about their safety and well-being.”
Legitimate Reasons for Terminating an Employee
That said, wouldn’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 in 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.
Find Experienced Legal Help
If you have questions about your employee rights or free speech protections in and outside the workplace, talk to an employment law firm for legal advice.
Learn more about free speech rights under the First Amendment, how the National Labor Relations Act (NLRA) protects some types of employee speech, and what you can do about wrongful termination for retaliation or discrimination under federal or state law.
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