Are Employee Complaints Protected Speech?

As an employee living and working in America, you are subject to the country’s First Amendment rights to free speech. So, if you want to flip the bird to the presidential motorcade, you’re immune to consequences from your private employer, right? Not exactly.

Assuming all types of speech are protected can lead to trouble. There are restrictions based on the nature of employment and applicable laws. It is advisable to speak with an experienced employment lawyer for legal advice about protected speech in the workplace.

Defining Protected Speech at Work

“What is and isn’t protected speech is one of the most misunderstood areas of employment law and employee rights,” says Dove Burns, an employment law attorney at Kaufman Dolowich.

“And it’s become even more of a growing area in [recent years]. From the George Floyd protests and other social justice issues, the pandemic, and the ease of information-sharing at the tip of your fingers, many people are in a position where they want to speak out and have an easy avenue to do so. But the truth is, the First Amendment does not extend to the private workplace.”

Unless you’re a government employee working in the public sector, your speech isn’t as protected as you might think. However, this does not mean that private-sector employees have no protection.

Legal Protections and Limitations

There are legal protections for employees’ speech in the public and private sectors. However, the protections look different for both sectors.

Public-Sector Employees

The law distinguishes between speech that government employees make as private citizens and in their official capacities working for a public employer. The U.S. Constitution protects a public employee’s speech in the following circumstances:

• The employee is speaking as a private citizen
• An employee’s speech relates to a matter of public concern
• An employee’s right to speak outweighs the government’s right as an employer

Private-Sector Employees

Private-sector employees are afforded certain speech protections. “The National Labor Relations Act (NLRA) protects concerted activity,” Burns says. “Concerted activity occurs when an employee speaks out against a matter of public concern on behalf of a group of co-workers in a manner that is jointly arranged, planned, and discussed. This is quite different from a single public employee who works for the federal government who wants to give the middle finger to the president.”

Attorney Harvey S. Mars says areas of concerted activity include employee speech about working conditions and safety, pay, time off, pension, vacation time, and health care. “To the extent that an employee engages in a grievance about company policies, if they raise some concern to the employer that involves more than just themselves — for example, issues arising from employees working overtime and not getting compensated for it — then that employee cannot be terminated for raising that issue,” he says. “That’s protected speech.”

For concerted activities, an employer should avoid restrictions. Employers should consider excluding protected concerted activities in any speech control policies.

Is Employee Speech Protected Outside the Workplace?

Employee speech can be protected outside the physical bounds of the workplace — if you’re careful, Mars says.

“Regarding free speech rights and statements on the internet, the threshold is still the same: If you engaged in concerted activity for mutual aid and protection and use social media to speak to those issues but do not denigrate the employer, you should be OK.”

That means if you want to hop on Facebook when you’re off duty and say, “The working conditions at my place of work are terrible,” that’s protected, says Mars. “But posting something like, ‘Hey! Don’t buy food from my place of work because it sucks’ is defamatory and not protected free speech.”

And, Burns notes, you might double your trouble if your first foray into speaking out is on social media and not via internal channels.

Susan Progoff is co-chair of the Practicing Law Institute’s annual program on Understanding the Intellectual Property License. The Ropes & Gray partner says, “I think there’s an assumption that when you post things on the Internet, you can be anonymous. I suspect people are going to learn that just because you post something anonymously doesn’t mean it’s going to stay that way forever.”

“All the same rules apply in terms of libel and defamation for the Internet,” says Nick Akerman, a business litigation attorney in New York. “Your legal obligations aren’t eradicated by the computer.”

Risks of Speaking Out on Social Media Rather than Internal Channels

“The first thing to get an employee in trouble is if they fail to make any internal complaints and then use social media as a first place to air grievances,” she says. An employee should first use internal channels to speak out about the conditions of their employment before making statements through social media about the issue.

“An employee may have the benefit of a variety of whistleblower statutes, but those would likely start with some sort of internal complaint being lodged. Jumping on Facebook first to talk about the way they’re being treated might see you easily fall outside of federal First Amendment protection.”

But, Mars adds, there is the option of filing a charge with the National Labor Relations Board (NLRB). “Employees have the right to file a claim before the NLRB, as we saw with some Amazon workers who alleged unsafe pandemic protocols in certain warehouses,” he says. “The NLRB has field offices that will answer your questions.”

Employee Complaints

Let’s say you notice some unlawful activity at your job — anything from sexual harassment to unsafe working conditions. You make a complaint through the proper 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.

But let’s say that after you make the complaint, nothing immediately happens. Two weeks later, you become frustrated and express your grievances on Facebook or X.

“It would significantly weaken the case,” says Samuel P. Nielson, an attorney at Elite Employment Law in Laguna Hills, 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 posts 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 has a narrow scope of people you can make these protected complaints to. Always report to a government or law enforcement agency. Those will always be protected.”

Navigating Workplace Policies

Navigating political speech in the workplace takes balance. The employer’s interest and company policies must be considered in light of an employee’s rights. Clear workplace policies on political speech can help you understand your employer’s expectations.

• Account for communication and activity under the NLRA
• Avoid unlawful discrimination
• Consider state and local rules and regulations

Blogging About Work Conditions

Christine Lepera, author of Handling the Nonprotectible Elements Issue in Copyright Infringement Litigation, is a lawyer at Mitchell Silberberg & Knupp. Lepera compares blogging to e-mail. “It’s become clear that e-mail is not what it was initially thought to be — a private note,” she says. “It’s largely discoverable, creates tremendous potential exposure and liability for the company or the individuals who write them.”

“It’s difficult to analyze some of the issues regarding employment law and blogs because the law hasn’t been developed in a meaningful way,” says Herbert Eisenberg, a partner at Eisenberg & Schnell with 22 years of experience in employment issues and a member of the National Employment Lawyers Association. “Employees often use their employer’s computers for blogs, which not only limits their privacy, but also might be a legitimate rationale for their firing.”

Find an Experienced Employment Law Attorney

“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 unrelated to the protected speech or political activity.

No matter how careful you are when it comes to speaking truth to power in the workplace, there’s always a risk. “Be sure to consult with an employment lawyer regarding freedom of speech and your constitutional rights as a first line of defense,” Mars says.