Freedom of speech: Does it apply at work?

September 23, 2011
in Employment Law

It’s a free country, so employees can express themselves however they want at work, right? Wrong.

Only employees in the public sector—those who work for government ­entities—have First Amendment rights in the workplace, subject to significant limitations.

In private-sector workplaces, em­­ployees enjoy no such specific right. There’s no broad “privacy law” that some think exists to protect every­thing employees say or do from ad­­verse consequences.

Just recently, an Ohio hospital em­­ployee sued after he was fired for viewing nude photos at work.

He argued his termination violated his First Amendment right to free speech.

The court dismissed his case, saying free speech rights are only granted explicitly to government employees, not in the ­private sector. (Moore v. ­University Hospitals, No. 1:11-CV-508, SD OH, 2011)

Important point: The absence of a direct First Amendment free speech right does not give employers free rein to discipline or retaliate against workers for their speech or actions. Certain laws do provide em­­ployees with some protection for certain types of expression at work.

For example, the National Labor Relations Act (NLRA) says workers in both union and nonunion workplaces are free to discuss pay, benefits and other work conditions without retaliation.

Title VII of the federal Civil Rights Act and several other laws give ­workers the right to voice complaints—free from retaliation—about per­ceived workplace discrimination, harass­ment or other injustices.

And several whistle-blower laws give employees protection to speak out against perceived illegal injustices they see at work.

Final note: Regarding the case mentioned earlier, looking at nude photos at work would not likely have been considered free speech even if it occurred at a public workplace. That’s because the exercise of free speech has to involve comments on matters of public importance, not the right to view nudity for nudity’s sake.

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