Typically, the only workplace where you have First Amendment rights is if your employer is the government. Private actors, such as private enterprises, are not covered by the First Amendment. However, some of your workplace speech is protected by state and federal employment regulations. Your speech can still be restricted if you work for the government in order to maintain workplace productivity.
Additionally, if a coworker has used harassing language against you and your employer refuses to take action due to the harassing coworker’s first amendment rights, you could have a legal case. Contact PLBH at (800) 435-7542 to talk to an employment attorney who can help.
If I work for a private company, does the First Amendment still apply to me?
No, a private employer’s limits on your freedom of speech at work are not shielded by the First Amendment of the US Constitution.
The First Amendment’s opening five words are “Congress shall make no law.” The Bill of Rights only defend your rights against government repression, which is a significant restriction. This is referred to as the “state action requirement” of the Constitution. The Bill of Rights does not apply if the state, whether it be the local, state, or federal government, does not take any action.
Therefore, the First Amendment does not protect your workplace speech if you work for a private employer. Without violating the First Amendment, your employer is free to impose restrictions on your freedom of speech.
As a private employee, do I have any rights to free speech?
State or federal employment law may protect your right to free expression. The federal National Labor Relations Act (NLRA) and Title VII of the Civil Rights Act of 1964 apply nationwide, despite the fact that each state has its own rules regarding free speech in the workplace. Certain forms of speech are protected by these laws in the workplace.
Your “concerted activities” for “mutual help or protection” are protected by the NLRA. This includes conversations concerning one’s working conditions among coworkers or fellow employees, such as those about salaries, workplace security, and collective bargaining.
The National Labor Relations Board (NLRB) asserts that this employment right extends to social media posts, including profanity and other forms of speech that are not protected by workplace free speech laws.
Your ability to report employment discrimination or harassment is safeguarded under Title VII. You are shielded from retaliatory employment actions if you report harassment or discrimination. Retaliation may occur if your employer treats you materially differently as a result of making the allegation.
If you believe you have suffered repercussions due to protected speech in the workplace, contact PLBH at (800) 435-7542 to consult with an attorney.