Employee political speech: Protected or not?

Political discussions between employees at work become heated, negative political social media posts go viral, off-duty employees are photographed participating in off-duty protests, or workers show up at work wearing pins, buttons, or shirts emblazoned with political slogans. It seems these things are happening more frequently, and third parties are more willing to complain to employers about off-duty events they find offensive.

What, if anything, can employers do?

Let’s use the example of an off-duty employee who posts a politically charged message on social media. The post goes viral, and several customers relay their anger to the employer.

The employer wants to fire the employee, but before making this decision or taking some other adverse action, it should review potentially applicable laws, policies, and employment contracts.

1. First Amendment. While this is most often cited by employees as protection of their right to say most anything, it’s important to remember that First Amendment protections are directed at government action to prevent speech. It applies to public but not private employers, and not all speech is protected even for public employees. Speech that incites imminent violence or lawless action, is a true threat, contains obscenity (as defined by applicable law), or is defamatory (also as defined by applicable law) isn’t protected.