KemLaw

Do employees have the absolute right of free speech in the workplace? If you’re an employer – that question is important.

Most Americans and, by default, most employees probably assume they do.

But do they?

Interestingly, the First Amendment provides citizens free speech protections from intrusion by the government. Those protections are limited when applied to private entities – like private employers.

Government employees do have a degree of 1^st Amendment protection – after all – they work for the government.

Does this mean that private employers have the power to control all speech in the workplace?

Not exactly.

The National Labor Relations Act (NLRA) protects private and public sector employee rights to discuss the terms and conditions of their employment – such as how much they’re being paid and the hours they’re being asked to work. Employees may also freely talk about unlawful conduct as well as harassment, discrimination, workplace safety violations, and other issues in the workplace.

Do employer powers to regulate speech extend to social media?

An employee’s posts on social media platforms may at times be viewed as a protected activity if the employee in question is discussing working conditions and other labor relations matters. What’s more, the National Labor Relations Board (NLRB) and courts have even recently found that social media posts can be considered protected speech even if they contain profanities or negative comments about the business.

What about political speech?

Here private employers may also regulate speech in the workplace without violating the Constitution, though some state laws (i.e., CA) specifically protect political speech by employees.

If you are an employer in Connecticut and have questions about labor and employment law, contact the attorneys at Kainen, Escalera & McHale. Each of us has over 20 years of experience in all aspects of employment and labor law and can help you with this complicated topic. Please contact us if we can help you.

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