The Capitol riot at the beginning of this month prompted social media to terminate the accounts of President Trump, most notably his Twitter account. In response, several critics, including the President, stated that this was a unprecedented assault on free speech. The First Amendment puts restrictions on the government’s ability to regulate free speech, but not that of social media. The government limitations on restricting free speech also permits it to restrict and punish for speech that incites violence, yet that is a separate issue between the government and the President. While in the months and years to come there may be legislation that addresses social media’s power to control information that gets to the public, it is not a Constitutional right. Notwithstanding all of the above and regardless of what view you have on the social media ban of President Trump, employees need to understand that your private employer has no Constitutional obligation to provide you freedom of speech, either in the workplace or elsewhere.
For example, if an employee stated in his social media account that he wished the Capitol rioters went further in their violence, the employee even though making that comment outside of work, could be fired. Absent an employee being in a union in which the union agreement, also known as a collective bargaining agreement, gives the employees of the union certain rights, most employees are employees at will which means that both the employee and the company can terminate the employment relationship with or without cause and with or without notice. There are certainly federal and state law exceptions to that, yet if an employee of a private company is expressing his views that are not related to his job, he does not have job protection in stating those views. While most employers would not take action due to an off-handed remark at work or outside work, if the comment was to express a desire for a criminal act or the comment insulted a co-worker for a conflicting political view and therefore disrupted the workplace, that speech could result in job loss.
Certain speech, however, between co-workers that appear to be political may be protected. Before taking action related to an employee’s comment at, or outside work, the company should speak with its employment counsel. For example, if an employee is complaining about state executive orders requiring masks be worn in public and temperature checks as a condition of employment, that in addition to being a complaint of government actions is really work related and is likely to be considered a concerted activity under the National Labor Relations Act. That federal law permits employees to speak with their fellow workers about concerns they have in the workplace, which in that situation would be the work conditions imposed upon them due to the pandemic, just like they have the right to share with their co-workers’ frustration about their pay or hours worked. This law does not authorize the employee to ignore a mask or temperature check mandate but some complaining to co-workers is allowed. That said, complaining that your employer is complying with a government mandate is not a good career choice. Just because you can do something does not mean it is prudent to do so. If the boss is looking to promote an employee her choice may be the team player that is always trying to improve rather than the employee that is often complaining. Also frequent complaints to co-workers could estrange you from those co-workers who are sick of hearing continuous complaints about something none of those workers can change. The practical reality is that employees that make their bosses look good generally have a better job trajectory than those who do not.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].