Ever play the game telephone? It’s a game in which one person whispers something into the ear of the next person, and that person is supposed to whisper the same thing into the ear of the next person, and so on. When the group gets to the last person, he or she is supposed to tell the group what was said. Invariably, the final statement is completely different from the initial one. The same thing often happens with respect to people’s understanding of the law – specifically workplace or employment law.
This blog series is meant to address some of the common misconceptions about employment law that float around, and correct any misunderstandings. For the most part, there’s nothing very new about the issues in this series. However, most employment lawyers have heard friends in casual conversation or clients make inaccurate statements about employment law. These misunderstandings can often lead clients into trouble.
You can read the other myths in the series here.
Employment Myth #4: “I voiced my opinion on my blog and got fired. My company violated the First Amendment.”
The First Amendment of the United States Constitution does not prohibit a private employer from firing or taking any sort of adverse action against an employee for voicing an opinion. The First Amendment applies to efforts by the government to prohibit free speech. When A&E temporarily suspended Duck Dynasty patriarch Phil Robertson for making certain unpopular statements about homosexuals in Rolling Stone magazine, the network acted within its rights. Chastising A&E’s decision to suspend Robertson, Bobby Jindal stated that he “remember[ed] when TV networks believed in the First Amendment.” The Louisiana Governor was wrong despite the fact that his statement might have played well with his base.
Though the First Amendment doesn’t prevent an employer from taking action against an employee for his or her speech, the National Labor Relations Act (NLRA) may offer protection to employees using social media or communicating about certain matters in or out of the workplace about certain workplace matters. The NLRA’s reach in the non-unionized context will be a topic for another day.