Free Speech in the Workplace

Personal Injury Lawyer

Probably the most familiar piece of the US Constitution to most Americans is the Bill of Rights. The Bill of Rights were not originally in the Constitution as it was drafted by Thomas Jefferson but were 10 Amendments later added to the Constitution by a group of founding fathers. This group felt the Constitution as drafted was too vague and that it was necessary to specifically spell out certain protections – civil liberties- citizens of the new country would have against a power-hungry government. They wanted to insure protections against government power under which they had suffered in the country they had recently fled. 

Most Americans recognize the civil liberties granted to citizens like freedom of speech, press and religion, the freedom to assemble peacefully, against unreasonable search and seizure, the due process of law. 

What many people don’t often understand is that these are protections against government infringement of these rights, protection against unreasonable and unjustified government action. 

The civil liberties enumerated in the Constitution to not extend to private actors such as private employers. 

Most employers are private employers and can ask employees not to talk about certain things, share certain information, with some exceptions. I am talking about truly private employers, not schools, not city offices or other employers like that. Even major contractors to the government are considered private. Religious organizations are considered private. 

So yes, your employer can ask you to take down that poster supporting a political candidate. They can ask you to keep your opinions to yourself about politics, religion, even how the company is managed (unless what management is doing is illegal). It doesn’t mean it is a good idea, or a good management practice, but they can. They are not the government. 

And generally, they cannot compel you to speak.  They cannot make a condition of your employment that you take a particular position on things, or promote a particular position, unless of course this is part of your job. If you are a public relations employee for the company, you will be expected to tow the company line. It doesn’t mean you have to lie for them. If you are a customer services representative, you may be expected to support the company’s position on an issue, even if you don’t agree with it. 

There is a particular exception to this. 

An employer cannot insist you keep your pay or benefits to yourself. Under the National Labor Relations Act, employers cannot prohibit employees from engaging in “concerted activity”. That means they can’t prohibit you from talking with other employees or other people on pay (including benefits) and working conditions at your employer. If you are disrupting the workplace when you do this, they can ask that you refrain from whatever behavior is disruptive, but they can’t insist you don’t talk about what you are talking about, pay and working conditions. 

It’s always a good idea to understand your employer’s position on open dialogue in the workplace, understand the boundaries. But remember, at the end of the day, the workplace terms and conditions are set by the employer, unless the workplace is represented by a union, and you need to comply with them to stay employed. 

When in doubt ask. And if you think there is unlawful – not unfair-  behavior in your workplace, seek the advice of an attorney, like an employment lawyer from Silverman Law Office, who understands this area of law.