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March 22, 2024 Employment Law

Freedom of Speech (or Lack Thereof) in the Workplace

If you pay attention to politics, you’ve likely noticed that we are living in polarized times. And like most societal trends, political and social polarization has a way of infiltrating the workplace, with both employers and employees increasingly voicing their opinions on hot-button issues in the public square. While taking a public stand can garner goodwill, it can also generate backlash, and that backlash for employees often results in adverse employment actions up to and including termination. Employers and employees dealing with speech issues in the workplace should speak to a Richmond employment lawyer for guidance. 

The First Amendment in the Workplace 

The First Amendment to the United States Constitution provides, among other things, that Congress shall make no law abridging the freedom of speech. Over the years, the U.S. Supreme Court and lower courts have clarified that the First Amendment’s freedom of speech clause applies only to the actions of the government — not private persons or entities. This is known as the “state action” doctrine. In the context of employment law, this means that private sector employees generally do not enjoy First Amendment protection in the workplace, while public sector employees do enjoy such protections (subject to certain limitations). 

Freedom of Speech for Private Sector Employees

In the private sector, employers generally are free to restrict the speech of their employees and to take any disciplinary measures they deem appropriate for speech-related violations of their employment policies and procedures. The power of employers to discipline employees for their speech or otherwise restrict their ability to speak can be seen in other areas of employment law. For example, Virginia, like most states, is an at-will employment jurisdiction, meaning that employers can hire and fire employees for (almost) any reason or no reason. Likewise, Virginia courts enforce non-disparagement clauses in employment contracts in most cases. 

Private sector employees do not have a constitutional right to free speech in the workplace, but they nonetheless enjoy some speech-related workplace protections through other laws, including employment discrimination, whistleblower, and retaliation laws. For example, federal and state laws protect employees’ ability to speak on subjects related to: 

  • Wages
  • Workplace safety and conditions
  • Opposition to discrimination and harassment
  • Employer or employee wrongdoing 
  • Accommodations for disabilities
  • Some religious expression 

If you have more specific questions about speech-related issues in the workplace, a Richmond employment lawyer would be happy to assist you. 

Freedom of Speech for Public Sector Employees

While private sector employees face significant headwinds when pursuing legal claims against their employers for speech-related discipline, the situation is different for public sector employees. Federal employees, state employees, and city and county employees generally enjoy broader protections on their ability to speak in the workplace than their private sector counterparts. This is because their employers — i.e., the government — are bound by the First Amendment and other speech-related laws, unlike private sector employers. 

Public employees do not have free reign to speak about whatever they want and in whatever manner they want in the workplace, however. Governments still have an interest in maintaining orderly and productive workplaces and, as such, may exercise control over how their employees perform their jobs. On the other hand, government employees are still U.S. citizens and do not lose their constitutional rights merely because they work for the government. 

A series of Supreme Court cases have established that a public sector employee’s speech is protected under the Constitution when: 

  1. The employee is speaking as a private citizen
  2. The employee’s speech is related to a matter of public concern
  3. The employee’s right to speak outweighs the government’s rights as an employer

Below, our Richmond employment lawyers explain each of these three elements. 

Private Citizen 

The law makes a distinction between speech government employees make as private citizens and speech they make in their official capacities as government employees. Speech made as a private citizen generally is entitled to constitutional protection, while speech made within the course of work duties generally is not. So, for example, an assistant district attorney who expresses support for her child’s school fundraising drive likely would be considered to be speaking as a private citizen. A public school teacher who repeatedly teaches inaccuracies likely would be considered to be speaking in his capacity as a government employee. 

Matter of Public Concern 

Public sector employee speech is protected only so long as it is related to a matter of public concern. While the courts do not get too specific about what constitutes a matter of “public concern,” the Supreme Court has explained that a public concern relates to “any matter of political, social, or other concern to the community.” To illustrate, speech alleging widespread corruption in a government agency likely would be considered a matter of public concern. Speech disputing the results of an employee evaluation likely would not be considered a matter of public concern. 

Employee’s Right to Speak vs. Government’s Rights as Employer

Finally, a public sector employee’s speech is protected only if the employee’s right to speak outweighs the government’s interest in maintaining an orderly and productive workplace. Courts look to several factors when balancing these interests, including: 

  • Whether the speech was directed to persons with whom the speaker would ordinarily be in contact with in the course of daily work 
  • Whether the speech impedes discipline by supervisors or harmony among colleagues
  • Whether the speech detracts from relationships that require loyalty and confidence
  • Whether the speech impedes the employee’s performance of his duties or the operations of the office 

While this balancing test is intensely fact-specific, the main takeaway is that the more disruptive the speech is, the less likely it is to be protected. 

A Richmond Employment Lawyer Can Help You Determine Whether Workplace Speech Is Protected

Wrongful termination suits alleging constitutional or other speech-related violations can be difficult to pursue and defend. Your best bet for prevailing is to seek the counsel of an experienced attorney. To get started, please contact a Richmond employment lawyer at Pierce / Jewett by calling 804-502-2320 or using our online contact form.