Employee Survival Guide® - Employees Have No Freedom of Speech At Work

Episode Date: October 8, 2024

Comment on the Show by Sending Mark a Text Message.Unlock the mysteries of employee speech rights within private companies and discover the surprising realities that might affect you. Have you ever questioned whether your freedom of speech truly extends into the workplace? We'll unravel the limitations of the First Amendment for private workers and spotlight when speech is, in fact, protected under laws like the National Labor Relations Act and whistleblower statutes. With examples from state-specific protections such as Connecticut's General Statutes 31-51Q, this episode empowers you with the knowledge to navigate workplace speech with caution and confidence. Whether you're speaking out on public matters or simply trying to understand company policies, grasp the nuances of your legal standing and know when it’s time to consult a legal expert. If you enjoyed this episode of the Employee Survival Guide please like us on Facebook, Twitter and LinkedIn. We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts. Leaving a review will inform other listeners you found the content on this podcast is important in the area of employment law in the United States. For more information, please contact our employment attorneys at Carey & Associates, P.C. at 203-255-4150, www.capclaw.com.Disclaimer: For educational use only, not intended to be legal advice.

Hey, it's Mark here and welcome to the next edition of the Employee Survival Guide where I tell you, as always, what your employer does definitely not want you to know about and a lot more. It's Mark and welcome back to the next edition of the Employee Survival Guide. Today's edition is the Private Employees Have No Freedom of Speech at Work, Generally Speaking. If you work for a private employer, you do not have any freedom of speech at work. The United States Constitution states that you have a First Amendment right to freedom of speech, but when you work for a private employer, you generally have no right to freedom of speech.

And I'll explain the exception below. What is the difference between a private employer and a public employer? A public employer is any local, state, or federal government entity. When you work for a private employer, they are like private governments, and they set their own rules and require employees to follow them or be fired. In general, private employers have the right to set reasonable rules and restrictions on an employee's speech, so long as these rules do not violate applicable laws. For example, an employer may have policy prohibiting offensive and disruptive language in the workplace. However, there are some key exceptions and nuances to consider. There is a protected concerted activity under the National Labor Relations Act, the NLRA, which

provides some protection for employees of private sector companies to engage in quote private concerted activity, which includes discussions about wages, working conditions, and other terms of employment. And here's the catch, this protection applies even if the employees are not unionized at all. Anti-discrimination laws under federal and state prohibit discrimination based on certain protected characteristics, such as race, religion, disability, sexual orientation, age, gender, among others. Employees may be protected from retaliation if they speak out against discrimination or harassment based upon these protected characteristics. Think of sending an email to HR and then you're fired like a day later. Whistleblower laws under federal and state laws also protect employees who report illegal

or unethical conduct by their employers to their employers and then to state and federal governments. These laws can offer protection from retaliation for speaking out about such concerns. They're very powerful statutes, and there's a movement now under the federal statute. There's the Federal Trade Commission has its rules. There are SEC whistleblowing laws and SEC rules which provide for incentives for employees to come forward, which seems to be the main kicker to allow individuals to come forward and make complaints about financial fraud or corporate fraud. State laws provide a baseline level of protection as well, and they even offer greater protections

for employee speech. State laws, you understand that we have a federal system of government, so we have federal oversight, and we have the federal constitution, and we have state laws and state constitutions. We have a federalistic system in our country. State laws provide topics that cover topics against, or favor whistleblowing, but to disfavor retaliation against individual employees who speak out, and such things as political speech, off-duty conduct, or social media posts. And it's essential that to be aware of specific laws in your state.

In Connecticut, as in many other states, there are certain state laws that enhance protections for freedom of speech in the private workplace beyond what is guaranteed at the federal level. Specifically, my favorite statute is Connecticut General Statutes 31-51Q. This law specifically prohibits employers from disciplining or discharging employees for exercising their First Amendment rights under both the federal Constitution and the state constitution, including the right to free speech, as long as it doesn't interfere

with the employee's job performance or the employer's business interests. That's kind of the overall test. Employees must be speaking out about matters of public interest and concern, such as discussing wages or working conditions, reporting illegal activity of the company, in concern, such as discussing wages or working conditions, reporting illegal activity of the company, or unethical conduct.

Company policies, even if not legally required, many employers have policies or codes of conduct that address employee's speech. These policies may outline expectations regarding respectful communication, confidentiality, and social media use. Understanding these policies is crucial for navigating workplace communication. I can share one case I was involved with where we challenged an issue and the in-trial back and forth with the witnesses, the question was raised, did the company have a policy against the particular issue at hand?

And the company said no, there was no policy for what the employee had done, in this case the plaintiff, and the court immediately resolved the case because there was no company policy. So look at your company policies, they may benefit you or the absence of a company policy. The balancing act. The concept of freedom of speech in the private workplace often involves a delicate balancing act between the employer's right to maintain

a productive and harmonious work environment and an employee's right to express themselves. Courts often consider factors such as the nature of the speech, the potential impact on the workplace, and the employer's justification for any restrictions. So when you're looking at issues, first and foremost, why would you go ahead and do something like this?

Because you may jeopardize your job and get fired for it. So just stop there and why are you gonna do this? Most people don't really think about it and they just go ahead and do it without thinking about the ramifications. So think about risking your job for what you're about to say before you do it. So many of the cases people are unaware of the issues

and just say something and then are retroactively locked to talk to an attorney and they realize that that speech may have been covered, protected speech, which typically happens. That's how 31-51Q in Connecticut happens. Most important is that you can engage in speech about a matter of public interest and have a good faith belief that it's protected interest and that you were summarily discharged within days or weeks later,

there's actually a requirement to have a close approximate connection between the reason for termination and the act of what you did. Here's the catch, but you don't need to be accurate about whether in fact the public interest issue was in fact true. You just have to have a good faith belief that what you were doing, and it's the act

of protesting, engaging in speech, which the courts look to. Even if the underlying interest was actually wrong in terms of what you believed, you just had to have a good faith belief that what you're doing. So that's generally the test in these types of cases when it happens at work. Other issues that come up with respect to speech at work, generally you see it during the political cycle. You have employers who say that employees must vote a certain way.

Those are really unusual. You don't really see them that often. I don't see them very often, but you read about them in the press. And employers, let's see, they sometimes, let's see, other public policy or social justice issues come up and we recently saw that with the DEI movement

a few years ago that employers try to get ahead of the issue but before that DEI happened, there was basically public outrage within the companies and companies wanted to get ahead of it. So there was an example where companies allowed the speech to happen, even though generally speaking, they wouldn't otherwise have allowed it. They would have just caboched it very quickly.

There, there was more of a national issue that companies didn't wanna be on the wrong side of something. And you all saw that in the news media. But generally speaking, employees don't have freedom of speech, except for the exceptions I cited to you having to do with whistleblowing.

So there you have it. Hope you enjoyed the episode and talk to you soon. If you like the Employee Survival Guide, I'd really encourage you to leave a review. We try really hard to produce information to you that's informative, that's timely, that you can actually use and solve problems on your own and at your employment. So if you'd like to leave a review anywhere you listen to our podcast, please do so. And leave five stars because anything less than five is really not as good, right?

I'll keep it up. I'll keep the standards up. I'll keep the information flowing at you. If you'd like to send me an email and ask me a question, I'll actually review it and post it on there. You can send it to mcaru at capclaw.com. That's capclaw.com.