Many employees and employers mistakenly believe that an employee cannot be fired for “speech” made at work or outside of work. For example, an employee posts on his Facebook page that he hates all minorities. He brings a Confederate flag to work and hangs it in his office. Can the employee be terminated for his “speech?”
If the employer is a private employer (i.e., it is not a public/government employer), the answer is an emphatic “yes!” The initial reaction of many to this answer is: what about the employee’s First Amendment right to freedom of speech? Because this is a private employer, however, the employee has no First Amendment right to freedom of speech in the workplace. Remember, the First Amendment applies only to government/public employers. It does not limit a private employer’s ability to discipline or terminate an employee for speech that violates its internal policies or otherwise is deemed inappropriate or offensive.
The only caveat here is that the National Labor Relations Board has recently spent a great deal of time expanding an employee’s right to engage in “protected concerted activity.” To the extent that the employee’s “speech” is deemed to be such “protected concerted activity,” an employer (both private and public) would be limited in its ability to discipline or terminate the employee for such “speech.”
Employees working for a public or government employer (e.g., the federal government, the Commonwealth of Pennsylvania, or any lower level municipality) do have certain First Amendment freedom of speech rights in the workplace.
For more information regarding “freedom of speech” issues in the workplace and/or any other labor and employment law matter, please do not hesitate to contact a member of our Labor and Employment Department.