Company Culture, Workplace Culture

What Free-Speech Protections Do Private Sector Employees Have?

As Americans, we are rightfully proud of our freedoms and our rights. The country was founded on such principals. So, it’s not surprising that many employees become indignant if and when their employers put in place or enforce policies they see as curbing these rights, particularly their right to free speech.speech

The ‘Right’ to Free Speech

We’re probably all familiar with the very first amendment to the Constitution encapsulated as part of the 10-amendment Bill of Rights. But just how applicable is the First Amendment to private sector employment? The answer, as Lisa Nagele-Piazza explains in an article for SHRM (Society for Human Resource Management), is not really at all.

That may come as a surprise to some employers, but it’s a fact and one that has significant implications for them and their employees.

Free Speech in the Workplace

Nagele-Piazza, who holds a JD from the University of Miami, among other degrees, is Senior Legal Editor for SHRM. She interviewed multiple practicing attorneys for her piece.

Nagele-Piazza explains that, while Americans do have a constitutional right to free speech, that right is a protection against government suppression of free speech, not private employer suppression.

So, for example, while the First Amendment would protect us against a federal law barring protests against the president or Congress, it would not protect employees from a company policy against protesting the company CEO. It’s important to also point out that, here, we’re talking specifically about private sector employees. The rules for government employees can differ.

Some Rights Still Apply

But, just because the First Amendment doesn’t apply to private employees doesn’t mean they don’t have any “free speech” rights at all. Nagele-Piazza points out that the National Labor Relations Act (NLRA) protects employees’ rights to discuss the terms and conditions of their employment and that various laws at the federal and state level protect employee speech related to possible unlawful conduct in the workplace, harassment, discrimination, workplace safety violations, and other issues.

Open, Transparent, Two-Way Communication Matters

In the private sector, employees don’t really have a “First Amendment right” to free speech in the workplace. However, that doesn’t mean employers can run roughshod over employee speech—or that employee concerns and inputs should be ignored. Quite the contrary.

From an employee relations standpoint, having an open, transparent, and two-way communication culture can go a long way toward building trust, engagement and, ultimately, longevity.

From a risk management standpoint, policies restricting speech should be vetted with HR and/or legal professionals to avoid potential legal liability.