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Free Speech and the Workplace

By:  Santiago J. Padilla, Esq.

One area of law that is extremely confusing for employees is free speech in the workplace. Many people are aware that the First Amendment provides certain protections for speech. Unknown to many people, the First Amendment does not allow a person to say anything, at anytime, to anyone. The Supreme Court has placed limits on the availability of free speech.

One of the most used examples is that of yelling "Fire!" in a crowded theater. The First Amendment will not protect someone who does this, in part, because it could lead to panic and injury among the movie theater patrons. The courts would not see a reason to protect this speech, because it does not have any value. Also unknown to many employees, the First Amendment prohibits the government from abridging the freedom of speech. Therefore, it does not apply to speech in a private-sector workplace.

However, the lack of constitutional protection does not mean that private-sector employees' speech is completely unprotected.

The NLRB & Free Speech
The National Labor Relations Act was designed to protect employees who choose to discuss wages, hours and working conditions. With the explosion of the Internet and social media, the National Labor Relations Board (which enforces the NLRA) has begun to extend these protections to employee discussions online and in social media sites, like Facebook and Twitter. For example, the NLRB found a violation of the NLRA when an employee was fired for criticizing his boss on Facebook.

Again, the NLRB's protection is not infinite. Generally, the NLRB is only willing to protect speech between two or more employees that are discussing the workplace. Employees that post mere complaints or statements of general dissatisfaction with the job will probably not be protected. For example, if an employee posts a rant on his Facebook page about a boss or makes derogatory statements about a customer on Twitter, then they may not be covered.

Another example of speech that the NLRB chose not to protect occurred when an employee listed his occupation on LinkedIn as "f*cktard." The employee's "speech" had nothing to do with his workplace, wages or working conditions, and the NLRB chose not to extend its protection to his speech. The NLRB will also not protect lies, egregious disloyalty, threatening speech or harassment, as they are also not discussions of the workplace or working conditions.

Social Media Policies
In a similar vein to employee postings on Facebook, social media policies are also being closely reviewed by the NLRB. Many employers are creating very broad and very vague social media policies, in hopes that employees will err on the side of caution when posting to social media sites. The NLRB is seeking to crack down on these broad and vague policies. It is important that employees have freedom to post on their private social media sites without fear of reprisal by their employer, within reason. It is obvious to most people that your employer may prohibit employees from posting trade secrets to the Internet. However, the employer's social media policy cannot prohibit or discourage employee discussions about wages, hours or working conditions. Many employer social media policies are being struck down by the NLRB, so employees and employers alike in our area should seek out an employment lawyer to determine if an employer's policy is appropriate.

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If you have any questions regarding policies in the workplace or any other employment law matter, please contact Santiago J. Padilla at 1-800-483-7197.

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