Freedom of Speech in the Workplace

At Gold Star Law, people frequently call us saying they were fired in violation of the first amendment.  Usually, they say they said something that the employer did not like for some reason, which they are allowed to do under their right to freedom of speech, and their employer fired them for it.  Today we will address the frequently asked question- does a private employer have to honor your right to “freedom of speech?”

The First Amendment to the United States Constitution states as follows:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

What this means is that the GOVERNMENT cannot restrict your freedom of speech.  There are, of course, certain exceptions to the freedom of speech, such as defamation (making untrue derogatory statements about others), perjury (lying while under oath), blackmail, threats, and asking people to commit crimes. Generally, however, you should not be jailed or otherwise punished by the government simply for saying something the government does not like.

However, private employers are not the government.  While a private employer cannot imprison you or take your property or other rights, they do not have to let you say anything you want without repercussions.  In most cases an employer can discipline or even fire you based on things you say.  At-will employees can be fired for any reason that is not an ILLEGAL reason.

There are some major exceptions to an employer’s right to fire you based on things you say.  The biggest one is retaliation.  An employee has a right to speak up about certain wrongful practices, including violations of the Fair Labor Standards Act (which gives employees the right to minimum wage and overtime), Title VII (prohibiting discrimination on the basis of race, color, religion, sex, and national origin), and the Americans with Disabilities Act (prohibiting discrimination on the basis of a disability and requiring reasonable accommodation for a disability).  Most employment laws contain anti-retaliation provisions, meaning that if you speak up to enforce your rights under those laws, your employer cannot legally discipline or fire you for exercising those rights.

If you have been retaliated against, including being fired, for speaking up to protect your rights at work, call Gold Star Law to see if we can help.