Facts and the First Amendment: Freedom of Speech at Work

November 20th, 2017
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We live in a time when politics and personal opinion are polarizing the nation. Last year’s presidential election was unlike any other in history. Then came the Women’s March in D.C., the demonstrations in Charlottesville, and the #GoogleManifesto. This year the topic of standing versus kneeling during the national anthem dominated news headlines.

No matter your beliefs, the First Amendment rights to freedom of speech are fundamental to what it means to be an American. However, you probably don’t always have this right. If you work for a private company, the First Amendment doesn’t apply, at least when you’re on the clock.

If you work in the public sector, such as for a government entity, you do enjoy First Amendment rights subject to certain restrictions. If, like many, you work for a private organization, you must watch carefully what you say and do while at work.

Bottom line: On that particularly tough day when you tell off your boss, you can get fired for such colorful expression.

This doesn’t mean an employer has free will to fire an employee for any given reason. There are numerous federal anti-discrimination laws to consider, plus local legislation that is continuously evolving. Of course there would be a massive lawsuit if an employer fired someone for practicing a certain religion, for example, but some restrictions on speech are required by laws. HR Examiner provides examples:

  • Laws prohibiting discrimination and sexual harassment.
  • Laws protecting confidential medical and financial information prohibit employees from saying all sorts of things at work.
  • Insider trading and trade secret laws prohibit employees from giving out certain information about company finances and transactions during certain times.
  • Whistleblowing is also protected speech, but it has to be based on the employer’s violation of a statute, not just doing something mean or unfair.
  • Depending on the work, there may also be security clearance issues, contractual nondisclosure, and other policies that require silence.

When it comes to free speech at work, it’s best to err on the side of caution. Even if you don’t violate any laws, you don’t want to be known as the office extremist. When your professional brand is at stake, always put your best foot forward.

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