The First Amendment and Employment

Wrongful Termination and the First Amendment - Rosenbaum Thompson

Can You Be Fired for Voicing Your Opinion on Social Policy, Politics, or Religion?

Citing the First Amendment as a defense for saying whatever you want, whenever you want, is a common occurrence in the United States. And for good reason – the First Amendment to the United States Constitution clearly states that there should be no law that abridges the “freedom of speech” of an individual. But does the protected right of freedom of speech mean that you can say whatever you want in your place of work without consequences? Perhaps not. Here’s what you need to know about the First Amendment and employment in Kentucky, and when you could potentially be reprimanded for voicing your opinion on social policy, politics, or religion.

 Private Employers Can Enact Policies Limiting Political Discussions

While government employees have broader protections to free speech under the First Amendment, those protections are limited for those who work for private employers. That is because the First Amendment prevents the government from taking actions to limit free speech, but does not prevent private parties from enacting rules, especially as it pertains to at-will employment.

But Your Right to Discuss Certain Things Is Still Protected

While employers certainly have the right to set limitations on political or religious speech, and to fire an employee who engages in this type of speech, there are some things that you are allowed to talk about, and you are protected in doing so. This includes:

  • Workplace conditions. You can talk about workplace conditions at your place of employment, and the National Labor Relations Act protects you right to do so.
  • Discrimination in the workplace is illegal. As such, if a co-worker or employer of yours makes discriminatory remarks, and you report those remarks, you should be protected from retaliation, even if your comments are misconstrued by your employer as being political.

 When Your Employer May Take Action Against You, Even if You Are a Government Employee

Even if you are protected, either by the nature of the conversation in which you are engaging, because you are a government employee, or because you are engaging in political activities outside of work, there are still some situations in which your employer may retaliate against you, even terminating your employment. This could include situations in which:

  • Your political/religious speech or activity is disruptive to the workplace or interferes with the function of a government agency (if you are a public sector employee). If you are disrupting other employees’ ability to work, or if the speech or activity is interfering with your own work or the aims of agency for which you are employed, your employer could retaliate against you.
  • When your speech/activity is discriminatory. If you are engaging in behavior that is discriminatory in nature, you may be retaliated against. In fact, if your employer does not terminate you or take actions, they could even be the subject of a discrimination suit by another employee.
  • When your activity goes against company policy. Remember, while public employers cannot limit your rights to free speech, private employers certainly can.If your private employer has a policy that bars conversation about social policy, politics, or religion and you breach the policy, you could be terminated.

In a recent Supreme Court decision, Heffernan vs. City of Paterson 136 S.Ct. 1412, the Court sided with the petitioner and stated “When an employer demotes an employee out of a desire to prevent the employee from engaging in protected political activity, the employee is entitled to challenge that unlawful action under the First Amendment and § 1983 even if, as here, the employer’s actions are based on a factual mistake about the employee’s behavior.”

Speak with an Experienced Wrongful Termination Lawyer in Kentucky if You Have Questions

Many people who suffer with retaliation or are fired from their place of employment for political activity or voicing their political beliefs believe that their legal right to speak about what they want and engage in activities that they want is protected by the First Amendment. However, this is not true; the First Amendment only prevents the state from limiting freedom of speech.

As such, if you have been terminated from your place of employment for political discussions, you may not have a strong case against your employer. That being said, there are many federal and state laws that protect employees from retaliation for other things, and you should bring your case to an experienced Kentucky wrongful termination lawyer for review.

At the law offices of Rosenbaum Thompson, our talented Kentucky employment lawyers will review your case for free, and provide you with sound legal advice. If we believe that your legal rights have been violated, we will take on your case and advocate for you. Contact us today at (859) 259-1321 or online to learn more.


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