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In the wake of political unrest on immigration issues, division across the nation following the Charlie Kirk assassination, and the recent discipline of a Ford Motor Co. employee for calling President Donald Trump a "pedophile protector," perhaps a refresher on employee speech and activism is in order.
While free speech under the First Amendment is a fundamental right, it is not unlimited. Often employees do not realize their First Amendment rights do not extend to the private employment setting. Indeed, a private employer can discipline or terminate an employee for their speech — on-site or off-site, during or outside working hours — as long as the employer does not violate some other state or federal law (i.e., most states prohibit adverse action against an employee when the action violates an explicit public policy, and the National Labor Relations Act (NLRA) prohibits employers from taking adverse action against employees for concerted activity or discussing working conditions).
In recent history, private employees may have expressed opinions on COVID-19 vaccinations; diversity, equity, and inclusion; climate change; the #MeToo movement; Black Lives Matter (BLM); and countless other social justice or politically charged topics. And in cases where litigation or publicity followed an employer's attempt to limit employee speech on those topics, the inquiry was often fact-driven and circumstantial, sometimes with perplexing and conflicting outcomes.
For instance, one federal court held Whole Foods did not violate Title VII when it told its employees they could not wear masks and apparel referring to the BLM movement while at work. However, the National Labor Relations Board concluded Home Depot violated the NLRA when it discharged an employee for refusing to remove the hand-drawn letters BLM from his work apron. While the NLRB's decision was later overturned, the extensive litigation of these issues illustrates the complexity and nuance involved in evaluating whether to discipline an employee for their speech.
The expansive use of social media further complicates a private employer's calculus when evaluating whether to discipline an employee for speech. In one highly publicized example of employee discipline for online speech, Juli Briskman, a marketing analyst for a federal government contractor, was terminated for violating a company policy that banned obscene content on social media when an image of Briskman holding up her middle finger while a presidential motorcade drove past her in 2017 went viral. Briskman was not identified until she herself acknowledged online that she was the woman in the photo. She filed suit in Virginia, arguing her off-duty speech was protected, but her suit was dismissed because she was an at-will employee and First Amendment rights did not apply in the private sector.
Moreover, under the First Amendment, "speech" is not limited to an employee's use of words. Speech can include displaying symbols, attendance at a protest, running for public office, or physical gestures (e.g., an employee's termination for allegedly using a "white power" gesture while driving a company vehicle). In fact, "speech" can be demonstrated in an employee's silence, such as refusing to participate in an employer-sponsored activity.
While the general rule holds private employee speech is not protected and employers retain broad discretion to discipline employees for their speech, context is key. Here are some guidelines for employers to consider.
First, is there a state or local law that protects employees' political action or off-duty conduct? Could the private employee speech at issue qualify as concerted activity such that it is protected under the NLRA? Note that criticism of an employer or its management may be protected when the communication is considered an attempt to garner support or rally others if the speech is not "malicious or reckless." For online speech of private employees, is there a state or local law prohibiting employers from requesting access to employee social media accounts (e.g., Maryland Law §3-712 and Virginia Code §40.1-28.7:5)?
Second, does the private employee's speech violate any anti-discrimination or anti-harassment laws, even if the speech was made entirely off-site and outside working hours? If the employee's speech threatens or incites violence, discipline is almost always warranted. If the private employer considers the speech disruptive but not threatening, a closer analysis is required. An employee's speech can disrupt the workplace, but the employee's public speech can also be disruptive outside the workplace, either reputationally or by disclosing confidential information. Either way, employers should address these issues consistently to avoid disparate treatment of similar speech.
Private employers should implement or update policies regarding employee conduct, dress codes, absenteeism, social media use, and harassment, and they should educate employees about those policies. Even in the absence of clear policies, as noted above, private employers should maintain consistency in administering discipline based on employee speech. And documentation of the issue is critical to protect against any claim of harassment or discrimination based on a private employer's treatment of employee speech.
In sum, private employers generally can regulate employee speech and activism and can discipline or terminate employees for their speech. However, in most cases, legal counsel should be consulted to ensure a robust analysis of the potential risks when employee speech is involved.
Please reach out to the author with any questions or assistance needed on this matter. | 
