Employment Counseling and Litigation

Protected Workplace Speech

You may have noted that the NFL issued a new rule requiring all players on the field to stand for the national anthem.  Does that violate those employees’ free speech rights under the First Amendment?  Generally no, because the NFL is a private employer.  Private employers may limit certain workplace speech and activities.

However, that does not mean that private employers may intrude on all forms of speech by employees.  Some workplace speech is protected by laws other than the First Amendment.  For example, Title VII, which prohibits discrimination, also prohibits an employer from retaliating against an employee for reporting perceived workplace discrimination, a form of speech in the workplace.  And, under federal labor laws, employers also cannot discipline or terminate employees for their involvement in protected activity.  Common examples would include discussing wages, employment terms or working conditions, even if the employer has a rule (which would be illegal) against such discussions.

Many employers, of course, want to avoid workplace conflicts, particularly in today’s seemingly charged political and social environments.  Certainly all employers, except perhaps in the news media, want to avoid having those topics spill into communications with customers and clients.  Many employers implement policies or rules attempting to govern workplace speech.  A private employer can do that, but they must be careful to walk the line between protected and non-protected speech.  Some speech is protected even in a private workplace.