When we think about speech protections, we often think of the First Amendment to the U.S. Constitution. The First Amendment only prohibits governmental actors from abridging freedom of speech, so it doesn’t apply to private actors such as non-government employers. (The First Amendment does apply to government employers.)
Certain employee speech is protected, however, even in the context of private-sector employment. A prime example is the National Labor Relations Act (NLRA), which guarantees most workers the right to engage in concerted activity to improve their wages or working conditions. Speech reasonably related to such activity is protected in both union and non-union workplaces.
For example, the NLRA protects employees when they discuss their wages with one another in an effort to ensure fairness or seek wage increases. Employers with rules prohibiting such discussions should consider speaking with an attorney before initiating discipline.
Another context where employee speech is protected is discrimination and whistleblowing. Under a number of state and federal laws, employers are prohibited from taking any negative job action in retaliation for blowing the whistle, filing a discrimination or harassment complaint, or cooperating with another worker’s complaint. This is true of most anti-discrimination laws such as Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans With Disabilities Act and the Fair Labor Standards Act. It is also true of whistleblower-specific laws such as the False Claims Act.
Employee speech on personal social media may be protected
Many employers have policies restricting what their employees can post on their personal social media accounts. Many of these restrictions are quite reasonable, as certain social media posts can create a negative impression of a business. Certain types of postings can also violate noncompete and non-solicitation agreements that the posting employee may not even know about.
When developing or enforcing a social media policy, however, employers should keep in mind that employee speech protections continue into the off hours. For example, an employee’s discussion of discrimination on the job may sound disloyal to the company but it may also be protected under the NLRA or the applicable anti-discrimination statute.
Both the National Labor Relations Board and courts have ruled that social media postings are protected, in some instances, even when they appear disloyal to the business or when they contain profanity.
Employers should be ready to justify their social media policies on neutral, reasonable grounds and to ensure those policies would not be reasonably perceived as restricting employees’ discussions about collective action, wages or working conditions.
If you have questions about protected employee speech or social media policies, ask your employment law attorney for assistance or clarification.