By Fran Slusarz
It always surprises people when they learn that they really don’t have a right to say whatever they want at work or outside work. We all have rights to free speech under the First Amendment, but what that means is often misunderstood. Everyone’s heard, “You can’t yell ‘Fire!’ in a crowded theater,” but what does that mean for everyone who doesn’t work in crowded theaters?
Answer: not a heck of a lot.
What the First Amendment Is and Is Not
First, take a look at what the First Amendment actually says: “Congress shall make no law … abridging the freedom of speech….” The First Amendment is only concerned with what the government does. Government employers have protection for speech made in their capacity as private individuals, but not in their roles as government employee. If a government employee’s freedom of speech is abridged, the employee can bring a civil rights claim under 42 U.S.C. § 1983. But your private employer? The First Amendment has nothing to do with it. Private individuals and private companies can do what they want. Even terminate your employment.
This may seem counterintuitive – how can you be fired for doing something that is 100% legal and enshrined in the Constitution? Simple: just because the government cannot stop you from doing something does not mean your employer has to like it. For example, you can be a member of the KKK and the government cannot stop you and your brother klansmen from putting on pointy hoods, and sharing secret handshakes and racist screeds (one assumes). When your employer finds out, however, she can fire you because she finds your beliefs repugnant. Many who stomped around Charlottesvillle, Virginia, shouting Nazi slogans learned this the hard way.
But this same rule works against people who are bringing attention to concerns more in line with American ideals of life, liberty, and the pursuit of happiness. For example, in 2017, Lisa Durden, a college professor, was fired for appearing on Fox News and defending a Black Lives Matter party to which only Black people were invited. There’s no question that her statements were protected by the First Amendment, but some of her statements were viewed as inflammatory, outrage was duly sparked, and her employer wanted to distance itself from her.
Don’t Embarrass Your Employer
Like it or not, we are all ambassadors for our employers and how we act/what we do reflects on them. We live in a world where the Internet can find you in hours, as certain self-involved dog owner and bullying cyclist recently learned. Both lost their jobs because their actions reflected upon their employers, and their employers wanted nothing to do with them.
These are outrageous examples that illustrate an important lesson. If keeping your job is important to you, you must consider how publicly exercising your right to free speech reflects on your employer. A vocal gun control advocate can’t expect to keep his marketing job at Smith & Wesson.
If You’re Not the Designated Spokesperson, Don’t Speak for your Company
This seems obvious, but it includes not doing or saying anything that would make anyone else think that you are speaking for the company. For example, if you work for UPS, doff the brown uniform before you join the protest rally. Don’t hold a sign that says, “Company X Employees Against World Peace.”
Before law school, I worked in human resources for a Fortune 10. One day, all hell broke loose because a vice president of training and development wrote a letter to the Wall Street Journal on company letterhead, which WSJ printed. His letter included references to “gritty inner-city streets” and addressed racial issues. He was lucky. It was the late 90s and the hubbub was almost all internal. If that were today, he would have been fired the day after WSJ published his letter.
Nevermind Your Privacy Settings, Everything on the Internet is Public
This is where people make the most mistakes. You may think you are just venting to a group of friends and no one else will see it, but anything can be forwarded, or screenshot, or found in a Google search. Don’t write anything you wouldn’t want your boss to read and you don’t want published on The Daily Beast. If you’re unsure, stick with cat memes.
Last year, agents of U.S. Customers and Border Patrol discovered that their “private” Facebook group, where they shared jokes about dead migrants and sexist memes, wasn’t at all private. Various punishments ensued and Congress is investigating the group. This is not a good look on anyone. That any of the more active members are still employed is only because they are government employees and are entitled to due process. Private employees are not.
Back to Fairness, Why Isn’t What You Say “Off the Clock” Protected?
By design, the Constitution concerns itself only with what the government can and cannot do. The idea was that if the government involves itself too deeply in the day-to-day conduct of people’s lives, it is akin to tyranny. So, we are left with an imperfect situation where white supremacist groups are protected the same as pro-democracy groups, and your private employer can fire you for involvement in either.
Still, that doesn’t feel right. Is it possible to work around it, and protect employment rights for private employees who are exercising their First Amendment rights?
Answer: Yes. Some federal statutes already protect some speech, and some states protect employees engaged in political activity.
OSHA, the NLRB, and Whistleblower Laws
As I discussed in my articles about preparing to return to work in CovidWorld and Whistleblower Laws, you have the right to a safe workplace and the right report unsafe working conditions without fear of reprisal. You also have the rights to discuss the terms and conditions of your employment with your co-workers and engage in concerted activity to change the terms and conditions. These protections are limited as to the subjects upon which you can speak, and to whom, but it is something.
Some states have passed laws that specifically protect employees from adverse action based on pollical activity. Connecticut comes right out and prohibits discipline or discharge of an employee for exercising First Amendment Rights, provided the activity does not interfere with the employee’s job performance or the working relationship between the employer and the employee. Colorado, North Dakota, and Utah prohibit workplace discrimination based on “lawful conduct outside of work.” California and New York prohibit discrimination for “recreation activities” outside work, which can include attending political events. A handful of other states protect employees engaged in “political activities,” based on their party membership, and based on their “political opinions.”
In the current divisive political environment, it is unlikely that the federal government will pass a law adding employment protection for political activity, but laws change to reflect the people’s beliefs. Twenty years ago, marriage equality seemed like an impossibility. By 2004, same sex marriage was legal in Massachusetts, followed by Connecticut’s civil union law in 2005. Over the next 10 years, same sex marriage became legal in state after state, until the watershed moment in 2015, when the U.S. Supreme Court declared same-sex marriage to be legal throughout the United States.
A sea change of societal acceptance over 15 years, from something considered virtually impossible to something legal and generally accepted by most Americans is unprecedented. But don’t be discouraged. Pressure from the general public is already causing businesses to rethink their policies about political speech at work.
Earlier this month, Starbucks suffered serious social media backlash when it was learned they instructed employees that they could not wear Black Lives Matter shirts or paraphernalia because it might amplify divisiveness. Starbucks has since announced the creation of its own Black Lives Matter t-shirts for its employees to wear. Last week, when a Taco Bell franchise employee claimed he was fired for wearing a Black Lives Matter face mask, Taco Bell was quick to respond, apologizing for the action, stating that its employees are allowed to wear Black Lives Matter masks and that it supports the Black Lives Matter movement. I doubt any of us could have imagined this reaction three years ago, when Lisa Durden was fired.
One thing is certain, support for free speech protection for private employees is gaining traction in the United States. We certainly live in interesting times.
If you would like more information about this topic please contact our employment attorneys at Carey & Associates, P.C. at 203-255-4150 or email to firstname.lastname@example.org.
The increase in private sector employment, rise of social media and caustic political climate have combined to create a slew of new issues surrounding the rights of private sector employees to express themselves outside the workplace.
Consider the highly publicized example of a New Jersey lawyer who was “outed” as a Democratic “ringleader” by a local Republican congressman for her off-duty political activism. The now former Representative Rodney Frelinghuysen (R-N.J.) sent a fundraising letter to a board member of the bank at which Saily Avelenda worked calling attention to her off-duty political activism, none of which was connected in any way with her employer. Frelinghuysen enclosed an article that quoted Avelenda with a handwritten warning that a member of one of the groups challenging him worked in his bank. Although Avelenda was not disciplined directly, her employer required that she write a statement to explain her political affiliations and activities. She resigned shortly after due to pressure she felt at work after having been targeted. Unfortunately, private employees in New Jersey are not protected against employer retaliation for off-duty political activity.
Contrary to common belief, the First Amendment protects only public sector workers from termination based on their political expression. While there is no federal law explicitly covering all off-duty political activism, the National Labor Relations Act protects private sector employees from retaliation for union-related political activity. However, “purely political” speech unrelated to union activity is not protected.
States Enact Prohibitions Against Interference
Although private employers are free to regulate most political speech in the workplace under federal law, many states, including North Dakota, Colorado, New York and California have enacted prohibitions against interference with an employee’s lawful off-duty political activities. In these states, employees cannot be discriminated against based upon their political affiliation or political activity.
What Is Considered Political Activity?
The very definition of “political activity” varies from state to state. While the majority of states consider voting rights to be protected as “political activity”, states such as New York have extended this definition to include running for public office, campaigning for a candidate for public office, and participating in fund-raising activities for the benefit of a candidate, political party or political advocacy group.
Connecticut Provides The Most Protection For Political Speech
Connecticut’s free speech statute is the nation’s most expansive in terms of the protection it affords private employees for political speech. Connecticut General Statute § 31-51q extends the same speech protections to public and private sector employees, prohibiting employers from disciplining or discharging them “on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution . . . provided such activity does not substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and the employer.”
The statute allows an employee who believes that he has been retaliated against for exercising his right to free speech to sue his employer. However, the language of the statute has been open to broad interpretation since it was enacted in the 1980’s. First, other than in the obvious situation of discharge or demotion, an employee must show that he has been subject to some form of discipline by his employer. Second, the employee must show that he was speaking on his own behalf as a private citizen, not in connection with his job.
How To Prove Your Freedom of Speech Was Violated
In addition, the employee must demonstrate that he was expressing himself on a matter of public concern, unrelated to any private dispute with the employer. The U.S. Supreme Court has defined a public concern as “something that is the subject of legitimate news interest” or an issue that is of value or concern to the public at the time of the statement. To be considered a matter of public concern, there must be an “expression of views”.
Not all politically related conduct involves a matter of public concern. For example, D.C. law only protects political activity that is related to affiliation with a recognized electoral political party. Therefore, an employer is not prohibited from firing an employee based on his political activities in connection with a non-electoral white supremacist organization, for instance. As one federal court reasoned, “political” speech is aimed at government conduct rather than merely expressing a hateful opinion about members of a particular social group.
The employee must then show causation: that the exercise if his right to free expression was “a motivating factor” in the discharge or discipline. If the employer claims that the action was based on reasons other than free expression, such as poor performance, the burden then shifts to the employee who must show that the employer’s explanation is a pretext, and that the real reason he was fired was for exercising his right to free speech.
Finally, an employee’s political expression is only protected to the extent that it does not “substantially or materially interfere” with the employee’s job performance or working employment relationship. An employer cannot be forced to keep an employee who is connected with a group espousing hateful ideology. Court have invariably presumed that such ideologies “substantially or materially interfere” with the workplace relationship by creating a hostile work environment for other employees and business associates.
To date, there is no Connecticut case law addressing the interference of off-duty political activities with a private employment relationship. However, in the context of government employment, the Second Circuit Court of Appeals followed the Supreme Court’s lead in concluding that unless the employer demonstrated “a vital interest” in firing employees based “on political belief and association, doing so plainly constituted an unconstitutional condition”. In the case of the employee who participates in hate speech off hours, his employer certainly has a “vital interest” in avoiding any association with such views, which would likely hurt the business.
If you believe you have suffered at work because of your political activities, contact our office (203) 255-4150, send an email to email@example.com, and speak to one of our employment attorneys. You may be protected under the law, particularly if you work in Connecticut.