June 20, 2018 – In this age of social media, employees have more tools to speak out about their grievances, complaints, or opinions. But how far can employee speech go before the First Amendment no longer protects them? The short answer: it depends.
“An individual may speak out on an issue that is very politicized or controversial, or even make a discriminatory remark, and the employer finds out,” said Josh Barrett, an attorney with the Federal Aviation Administration who recently delivered a State Bar of Wisconsin PINNACLE® presentation on free speech in the workplace.
If adverse employment action is taken against the employee, the employee may have recourse under the First Amendment right to free speech. The level of one’s free speech protection may depend on whether the employer is private or public.
For instance, under the Fair Labor Standards Act, speech that is related to an unfair labor practice, such as disparities in pay, or work conditions or safety, are protected. The legislation protects both private and public employees. Other speech might not.
Barrett says, employers have the right to maintain a workforce that is orderly and to maintain morale. Significant cases have explored the boundaries of employee speech.
In “Freedom of Speech in the Workplace: Exploring the Rights of Public and Private Employees,” available on demand, Barrett and attorney Jeff Scott Olsen dive deep into the guidance, including the statutes and case law specific to social media speech.