Certain hot topics in the news have a way of becoming a topic of discussion in the workplace and employees wonder if they have a right to discuss these matters under the First Amendment to the U.S. Constitution or if they can be fired for discussing politics at work.
First, much of this depends on whether you work for a private or a public employer. The First Amendment was written to restrict the government’s curtailing one’s right of freedom of speech but not on a private employer’s imposing restrictions of freedom of speech on its employees as a condition of employment. You can read a synopsis of this distinction here.
Most employees in New Jersey are “at-will” employees. Their employers may terminate them for any reason as long as it is not an illegal reason such as illegal discrimination or retaliation for whistle-blowing, etc. Private employers have the right to reasonably restrict any activity or speech in the workplace that they believe is unproductive and not related to the work itself. This could include being on social media or shopping on-line while on the clock. While some employers may allow this during a designated break time or lunch hour, an employer whose employee must use a company-owned computer to accomplish their job, is not required to allow the employee access to that computer on break time for personal business or pleasure.
Therefore, an employee may not sue his private employer for restricting his freedom of speech under the First Amendment of the U.S. Constitution. The First Amendment establishes limits only on the government’s infringement of speech rights but not on a private employer’s curtailing of speech. As shocking as it may seem to many people, a private employer may legally have rules against employees displaying political posters on their desk, or wearing shirts expressing political views or cultural/social movements.
Private employers however do not have total unrestricted complete freedom as to the type of speech constraints they may place on their employees. Most recently in New Jersey, the Diane B. Allen Equal Pay Act, as of July 1, 2018, makes it illegal for employers to have rules which ban employees from having discussions which compare their pay and compensation with other employees. Under this Act, an employer can also not put prohibitions on speech which discloses to other employees or former employees’ information regarding an employee’s occupational category, and rate of compensation. An employee who chooses to have discussions regarding pay with other employees etc., should do so wisely, i.e., not take up a paid work day doing a survey of every person in the building, so the employer cannot later argue a defense that the issue was not comparing wages but that the employee did so while on the clock and did not get any work done.
There are numerous laws in New Jersey which prohibits private employers from retaliating against employees for certain union activity speech under the National Labor Relations Act to protect union organizing efforts as opposed to airing general political views. New Jersey and Federal laws also make it illegal for private employers to retaliating against you for certain types of whistle-blowing speech, or for speech where you report or complain about illegal discrimination.
If you are a government employee, you do have some First Amendment protections as to your exercising free speech in the workplace. Yet even for government employees, the speech must first be deemed to be in the “protected” category and involve matters of sufficient “public concern” and not of “private concern” to receive the First Amendment protections. What is considered sufficiently of “public concern” to prevail in these types of claims is a complex issue as discussed in the 2014 U.S. Supreme Court case of Lane v. Franks and the later Aug. 5, 2016, Stilwell v. City of Williams.
In the case of Pickering v. Board of Education, 391 U.S. 563 (1968), the U.S. Supreme Court while recognizing that government employees did have the right to sue for retaliation for exercising speech rights in the workplace, the Court nevertheless instituted a legal balancing test of "public concerns" v. "private concerns" which a plaintiff must pass to prevail. For further information on this “Balancing Test”, you may read the September 30, 2016 article on this topic. The Balancing Test of "public concerns" v. "private concerns" for government employees is a thorny complex issue and as such, this article should not be construed as legal advice for any situation.
What You Can Do
If you are a public or private employee in New Jersey, and your employer disciplined you or retaliated against you for reasons that you believe may have violated the Diane B. Allen Equal Pay Act, or for reporting discrimination, whistleblowing or testifying against your employer, or for expressing your free speech rights, it is important to consult with an aggressive and experienced employment attorney. If you believe you are being subjected to such unlawful workplace retaliation or discrimination, please contact Hope A. Lang, Attorney at Law today for a free consultation.
New Jersey employment attorney, Hope A. Lang, Attorney at Law serves clients throughout the state, including Bergen, Middlesex, Essex, Hudson, Monmouth, Ocean, Union, Camden, Passaic, and Morris Counties with locations in Southern, Central, Western and Northern NJ to meet with clients.