First Amendment Rights at Work – Are There Any?

You generally only have First Amendment rights at work if your employer is the government. The First Amendment does not apply to private actors, such as private businesses. However, some state and federal employment laws protect some of your speech in the workplace. If you are a public employee, your speech can still be limited so as not to disrupt workplace efficiency.

Does the First Amendment apply to me if I work in the private sector?

No, the First Amendment to the United States Constitution does not protect your right to free speech from workplace restrictions by a private employer.

The first 5 words of the First Amendment are “Congress shall make no law”. This is an important limitation of the Bill of Rights: They only protect your rights from government suppression. This is called the Constitution’s “state action requirement.” If there is no action by the state – whether in the form of the local, state, or federal government – then the Bill of Rights does not apply.

If you work for a private employer, then, the First Amendment does not protect your speech in the workplace. Your employer can restrict your rights to free speech without implicating the First Amendment.

Private employers are any entities that are not a part of the government. They include:

• corporations,
• businesses, and
• non-profits.

Do I have any free speech rights as a private employee?

Your free speech rights may be protected by state or federal employment law. While each state has its own laws on free speech in the workplace, the federal National Labor Relations Act (NLRA) and Title VII of the Civil Rights Act of 1964 apply across the country. These laws protect certain types of speech in the workplace.

The NLRA protects your “concerted activities” for “mutual aid or protection.”¹ This includes speech between employees or co-workers about their working conditions, including discussions about:

• unionizing,
• workplace safety,
• wages, and
• collective bargaining.

According to the National Labor Relations Board (NLRB), this employment right stretches to include posts on social media, even if those posts include other types of speech that do not have workplace free speech protections, including profanity.²

Title VII, meanwhile, protects your right to speak out against discrimination or harassment in the workplace. If you make a claim of harassment or discrimination, you are protected from adverse employment actions. If your employer takes materially adverse action against you for making the claim, it can amount to retaliation.³

What is the law in California?

California state law includes several laws that protect your free speech rights in the workplace, even if you work for a private employer. Two of them provide additional legal protections for your political speech and activity.

Like the federal law Title VII, California’s Fair Employment and Housing Act (FEHA) protects you from retaliation for speaking out against workplace harassment and discrimination.⁴

However, two other laws go further than federal law.

California Labor Code section 1101 LAB prohibits employers, including private employers, from making or enforcing workplace rules that either:

• forbid or prevent employees from running for office or participating in politics, or
• control or direct their employees’ political affiliations or activities.⁵

Meanwhile, California Labor Code section 1102 LAB prohibits employers from threatening to discharge workers in order to influence their political activity.⁶

However, these rules have 2 important limitations.

They both require a showing that your employer acted against you for a political motive. If you suffered an adverse employment action, but it was an apolitical business decision, it does not violate the law.

For example: David has a full-time job. His employer has a policy that workers cannot take on activities outside of the workplace that would require a large time commitment without the employer’s prior approval. David tells his supervisor that he wants to run for public office on the board of supervisors for Los Angeles County. This position is a nearly full-time commitment. His supervisor forbids him from running. David ignores him, runs for office, wins the election, and then gets fired.⁷

Additionally, these California labor laws only apply to your political activity that happens away from work, when you are off-duty. Private employers can likely still make and enforce rules about political conduct that happens on the worksite.⁸

Recent initiatives to expand free speech rights in the workplace by making political affiliation a protected class under anti-discrimination laws have failed.⁹

What are my rights as a public employee?

Because the First Amendment protects your free speech rights from government suppression, if you work in the public sector, it applies to your workplace. However, those employee rights are not absolute. In order to be protected from workplace repercussions, a public employee’s speech must be:

• given as a citizen, not as a part of your official duties as a public employee, and
• about a matter of public concern.¹⁰

Some examples of public employees include:

• teachers or administrators in public schools,
• police officers,
• firefighters,
• doctors and other employees at public hospitals, and
• employees in federal, state, or local government agencies.

You can benefit from the First Amendment’s protections even if you are not directly employed by the government. Some examples include:

• employees of companies that receive government contracts,
• private employees that provide services to a public agency, like a court or school, and
• volunteers that provide public services.¹¹

Government employees speak as private citizens when what they say is not a part of their job. If you do not have an official duty to make the statements you are making, then you are speaking as a private citizen. Some factors include whether:

• you confined your communication within your chain of command or addressed them to the public,
• the subject matter was within your job duties,
• you spoke in direct contravention to your supervisor’s orders, and
• the subject matter was about broad concerns over corruption or systemic abuse that was not confined to your particular department.¹²

Your speech is a matter of public concern if it relates to a political, social, or other community concern. According to the Supreme Court of the United States, though, you only have First Amendment protection to make statements that do not threaten your public employer’s interest in running an efficient workplace.¹³

If your government employer takes disciplinary action against you for protected speech, it can amount to retaliation. It can also violate your constitutional rights for freedom of speech. Showing that you suffered an adverse employment action and that your statements were a substantial or motivating factor for it can take the legal advice and representation of a lawyer.