Think you have free speech at work? Think again

By Attorney Donna Ballman
Special to THELAW.TV

Did you hear about the gun columnist who was fired for writing that the Second Amendment has limits? Oh, the irony. But what, you ask, about the First Amendment? Isn't he protected by the right to free speech? Can't he express his opinions without fear of being fired?

I've said it in my book and I'll say it again: there is no free speech in corporate America. The First Amendment protects us from government action, not the actions of private companies. That means you can be fired because your private employer doesn't like what you said, with very few exceptions. Even government employees have very little free speech protection.

Indeed, there's been a rash of firings and disciplines for expressing opinions, in and out of work. Justine Sacco, PR executive for Daily Beast owner IAC, was fired for posting, on a flight to South Africa, "Going to Africa. Hope I don't get AIDS. Just kidding. I'm white!" The company was embarrassed when the tweet went viral. Business Insider forced their Chief Technology Officer Pax Dickinson to resign after he tweeted, "feminism in tech remains my champion topic for my block list. my finger is getting tired." And who can forget Duck Dynasty's Phil Robertson, suspended (and then quickly reinstated) after making racist and homophobic comments in an Esquire interview. The First Amendment didn't limit what any of these employers could do.

Still, not all speech is unprotected. Here are some circumstances where your speech might have some legal protection:

Concerted activity: The National Labor Relations Act (NLRA). NLRA says in Section 7: "Employees shall have the right to self-organization, . . . to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . ." That means if you get together with coworkers, or take action on behalf of at least one other coworker (not just on your own behalf), to protest or try to change working conditions, your speech may be protected.

Objecting to discrimination: If you speak out against workplace discrimination based on race, sex, religion, national origin, disability, pregnancy, age, or some other protected status, you are protected against retaliation by Title VII, the federal law prohibiting discrimination, and possibly your state anti-discrimination laws.

Political affiliation: Some states, counties, and cities have laws prohibiting discrimination based on political affiliation.

Objecting to illegal activity: If your speech was objecting to an illegal activity of your employer, you might be a protected whistleblower.

Activity outside work: Some states and localities prohibit employers for firing or disciplining employees for legal activities outside work. However, even those laws have exceptions for activity that affects the employer's reputation or the ability of the employee to do their job.

Contract: If you have a contract saying you can only be fired for cause, then check what is says constitutes "cause." Offending customers and coworkers probably is "cause" under most contracts. Many contracts have "morals" clauses that allow firing for anything the employer deems to be inappropriate.

Before you spout off at work or in social media about something your employer, customers, or coworkers might deem offensive, remember how little legal protection you have. Watch what you say, and especially what you email, text or post, even while you're at home, or risk being fired.

The author, Donna Ballman, is an employment attorney in Fort Lauderdale, Florida and author of Stand Up For Yourself Without Getting Fired.