Speaker 1: 0:20

Hey, it's Mark and welcome back to the next edition of the Employee Survival Guide. Today's edition is the Private Employees have no Freedom of Speech at Work. Generally Speaking, if you work for a private employer, you do not have any freedom of speech at work. The United States Constitution states that you have a First Amendment right to freedom of speech, but when you work for a private employer, you generally have no right to freedom of speech, and I'll explain the exception below. What is the difference between a private employer and a public employer? A public employer is any local, state or federal government entity. When you work for a private employer, they are like private governments and they set their own rules and require employees to follow them or be fired. In general, private employers have the right to set reasonable rules and restrictions on employee speech, so long as these rules do not violate applicable laws. For example, an employer may have policy prohibiting offensive and disruptive language in the workplace. However, there are some key exceptions and nuances to consider. There is a protected concerted activity under the National Labor Relations Act, the NLRA, which provides some protection for employees of private sector companies to engage in quote private concerted activity, which includes discussions about wages, working conditions and other terms of employment. And here's the catch this protection applies even if the employees are not unionized at all. Even if the employees are not unionized at all. Anti-discrimination laws under federal and state prohibit discrimination based on certain protected characteristics, such as race, religion, disability, sexual orientation, age, gender, among others. Employees may be protected from retaliation if they speak out against discrimination or harassment based upon these protected characteristics. Think of sending an email to HR and then you're fired like a day later.

Speaker 1: 2:32

Whistleblower laws under federal and state laws also protect employees who report illegal or unethical conduct by their employers to their employers and then to state and federal governments. These laws can offer protection from retaliation for speaking out about such concerns. They're very powerful statutes and there's a movement now under the federal statute. There's the Federal Trade Commission has its rules. There are SEC whistleblowing laws and SEC rules which provide for incentives for employees to come forward, which seems to be the main kicker to allow individuals to come forward and make complaints about financial fraud or corporate fraud. State laws provide a baseline level of protection as well, and they even offer greater protections for employee speech State laws.

Speaker 1: 3:33

You understand that we have a federal system of government, so we have federal oversight and we have the federal constitution and we have state laws and state constitutions. We have a federalistic system in our country. State laws provide topics that covering topics against or favor whistleblowing but to disfavor retaliation against individual employees who speak out and such things as political speech, off-duty conduct or social media posts. And it's essential that to be aware of specific laws. In your state, in Connecticut, as in many other states, there are certain state laws that enhance protections for freedom of speech in the private workplace beyond what is guaranteed at the federal level. And specifically, my favorite statute is Connecticut General Statutes 31-51Q. This law specifically prohibits employers from disciplining or discharging employees for exercising their First Amendment rights under both the federal Constitution and the state constitution, including the right to free speech, as long as it doesn't interfere with the employee's job performance or the employer's business interests. That's kind of the overall test. Employees must be speaking out about matters of public interest and concern, such as discussing wages or working conditions, reporting illegal activity of the company or unethical conduct.

Speaker 1: 5:14

Company policies even if not legally required, many employers have policies or codes of conduct that address employee speech. These policies may outline expectations regarding respectful communication, confidentiality and social media use. Understanding these policies is crucial for navigating workplace communication. These policies is crucial for navigating workplace communication. I can share one case I was involved with where we challenged an issue and the in-trial back and forth with the witnesses. The question was raised did the company have a policy against the particular issue at hand? And the company said no, there was no policy for what the employee had done. In this case. The plaintiff and the court immediately resolved the case because there was no company policy. So look at your company policies. They may benefit you, or the absence of a company policy.

Speaker 1: 6:11

The Balancing Act, the concept of freedom of speech in the private workplace often involves a delicate balancing act between the employer's right to maintain a productive and harmonious work environment and an employee's right to express themselves. Courts often consider factors such as the nature of the speech, the potential impact on the workplace and the employer's justification for any restrictions for any restrictions. So when you're looking at issues, you know, first and foremost, why would you go ahead and do something like this? Because you may jeopardize your job and get fired for it. So just stop there and you know why are you going to do this. Most people don't really think about it and they just go ahead and do it without thinking about the ramifications. So think about, you know, risking your job for what you're about to say before you do it. So many of the cases people are unaware of the issues and just say something and then are retroactively locked. Talk to attorney and they realize that that speech may have been covered protected speech, which typically happens. That's how 31-51Q in Connecticut happens.

Speaker 1: 7:19

Most important is that you can engage in speech about a matter of public interest and have a good faith belief that it's protected interest and that you are summarily discharged within days or weeks later. There's actually a requirement to have a close, proximate connection between the reason for termination and the act of what you did. Here's the catch. But you don't need to be accurate about whether, in fact, the public interest issue was in fact true. You just have to have a good faith belief that what you were doing. You just have to have a good faith belief that what you were doing and it's the act of protesting, engaging in speech, which the courts look to. And even if the underlying interest was actually wrong in terms of what you believed, you just had to have a good faith belief that what you were doing. So that's generally the test in these types of cases when it happens at work.

Speaker 1: 8:15

Other issues that come up with respect to speech at work generally you see it during the political cycle you have employers who say that employees must vote a certain way. Those are really unusual. You don't really see them that often, I don't see them very often, but you read about them in the press and employers let's see they sometimes. Let's see you know. Other public policy or social justice issues come up and we recently saw that with the DEI movement a few years ago that you know employers try to get ahead of the issue.

Speaker 1: 8:57

But before that DEI happened there was basically public outrage within the companies and companies wanted to get ahead of it. So there was an example where companies allowed the speech to happen even though generally speaking, they wouldn't otherwise have allowed it. They would have just kiboshed it very quickly. There there was more of a national issue that companies didn't want to be on the wrong side of something and you all saw that in the news media. But generally speaking employees don't have freedom of speech, except for the exceptions I cited to you having to do with whistleblowing. So there you have it. Hope you enjoyed the episode and um talk to you soon.