The Many Ways Private Employee Speech Is Protected

Law360 (October 30, 2020, 4:00 PM EDT) --
Andrew Melzer
Andrew Melzer
Whittney Barth
Whittney Barth
While it is true that the First Amendment ordinarily does not apply to private actors,[1] this does not mean that employers have free rein to curtail employee speech; in many instances, they do not. Employers need to remain mindful of the various worker protection laws that apply to their workforces.

We thought it useful to point out the panoply of statutory and common law protections for employee speech and advocacy both within and outside of the workplace.

We recently published an article in the University of Illinois Law Review Online addressing whether employees can be fired for participating in peaceful protests.[2] The article primarily focuses on whether workers can face employment repercussions for taking part in outside protests, and explores the potential legal avenues protecting such workers from being terminated for their political activities.

For private employees, the existence and scope of such protections largely depends on the state, territory and/or municipality where the employee works.

Some jurisdictions, like California and Connecticut, have adopted explicit statutory protections shielding employees from retaliation for engaging in certain political activity and expression.[3] Laws in other jurisdictions prohibit discrimination based on employees' political affiliation or electoral activity or broadly protect lawful conduct occurring outside of the workplace. While exceptions may exist for conduct that interferes with the employer's legitimate business interests, such exceptions should be read narrowly lest they swallow the rule and nullify the protections afforded by these statutes.

According to a 2012 article by First Amendment scholar Eugene Volokh: "About half of Americans live in jurisdictions that protect some private employee speech or political activity from employer retaliation."[4] Thus, while the relevant statutes vary considerably, any suggestion or implication that workers are generally unprotected is incomplete.

Common law protections may also exist. For example, numerous jurisdictions have adopted the tort of wrongful discharge/wrongful termination against public policy[5] and the implied contractual covenant of good faith and fair dealing may also be implicated in some cases.[6] An analysis of such claims may potentially be informed by Restatement of Employment Law Section 7.08 (2015), which states:

(a) Employees have protected interests in personal autonomy outside of the employment relationship. Such interests include:

(1) engaging in lawful conduct that occurs outside of the locations, hours, and responsibilities of employment and does not refer to or otherwise involve the employer or its business;

(2) adhering to political, moral, ethical, religious, or other personal beliefs or expressing such beliefs outside of the locations, hours, and responsibilities of employment in a manner that does not refer to or otherwise involve the employer or its business; or

(3) belonging to or participating in lawful associations when that membership or participation does not refer to or otherwise involve the employer or its business.

Comments to Section 7.08 state that the section draws upon various "statutory and common-law sources to recognize an implied understanding between the employer and employee that the employer will not intrude upon an employee's autonomy interest to the extent stated in this Section."[7]

In addition, there may be federal protections in certain circumstances. Our recent University of Illinois Law Review Online article argues that there may be a viable retaliation claim under Title 42 of the U.S. Code, Section 1981, when employees are penalized for participating in racial justice protests, such as Black Lives Matter rallies.[8]

Further, when an employee's activities touch upon workplace-related issues or practices, claims may be available under the National Labor Relations Act, Title VII, and other labor and employment statutes. Selectively targeting certain employees or subjects of discourse may also give rise to discrimination claims.

This leads into a whole other set of protections for employee speech — namely the vast array of federal, state and local protections for whistleblowers of various stripes: employees who report, oppose or take action against allegedly unlawful employer conduct or practices.

In addition to filing claims and offering testimony, many of these statutes protect internal complaints and protests, as well as external activity such as media interviews and other press activity, picketing, and providing information to government agencies and entities. The scope of protected activity depends on any relevant statutory or regulatory language as well as pertinent case law.

For example, many federal discrimination, employment, and wage and hour statutes include express or implicit protections against retaliation. Under such laws, retaliation is broadly interpreted to include any action that "might well have dissuaded" a reasonable worker in the employee's shoes from engaging in protected activity.[9] State and local counterparts may provide equivalent or more expansive protections.

Title VII, the Age Discrimination in Employment Act, Americans with Disabilities Act, and Family and Medical Leave Act all prohibit employers from retaliating against workers who oppose unlawful practices under those laws.[10]

Notably, this language has been construed to include internal complaints and protests, press interviews, media campaigns, picketing, letters to customers and similar activity.[11] As with most retaliation provisions, there need not have been an actual underlying violation. Employees are protected even if their complaints are mistaken and there was no unlawfully discriminatory conduct or practices.[12]

The Fair Labor Standards Act, which also includes the Equal Pay Act, also incorporates strong retaliation protections.[13] The statute covers oral, written and informal complaints to the employer,[14] and like Title VII and other laws does not require an underlying violation.

And, Title VI of the Civil Rights Act, which prohibits race discrimination in programs and institutions receiving federal funding, also incorporates potent anti-discrimination protections.[15]

These types of protections are central to any effective anti-discrimination regime. Indeed, the U.S. Supreme Court has read in such protections as implicit and inherent in federal statutes — like Title IX, which prohibits gender discrimination in educational programs receiving federal funding, and Title 42 of the U.S. Code, Section 1981, which broadly prohibits race discrimination including in employment — that do not have express anti-retaliation provisions.[16]

Next, some people might be surprised to learn that labor laws associated with union organizing actually cover a broader range of employee activity.

The NLRA provides employees the right, free of employer interference or retaliation, to "self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection."[17] These protections extend to, for example, discussions, protests and other concerted activities concerning wages, benefits, working conditions and similar employment-related issues.[18]

Various other laws related to occupational health and safety or working conditions also protect employee whistleblowers engaging in certain speech and conduct. For example, the federal Occupational Safety and Health Act protects employees for filing complaints or instituting proceedings related to the act, testifying or preparing to testify in such proceedings, "or because of the exercise by such employee on behalf of himself or others of any right afforded by this chapter."[19]

There are a range of other federal whistleblower protection laws administered by the Occupational Safety and Health Administration in areas including environmental protection/public health, financial regulation, product safety, consumer protection and more.[20]

For example, Section 1558 of the Affordable Care Act protects employees for providing information relating to acts or omissions reasonably believed to be a violation of "this title" or for objecting to or refusing to take part in such activity.[21] As with the discrimination and employment statutes, such provisions rest on the premise that efforts to curtail the underlying conduct would necessarily fall flat if employees who spoke out or blew the whistle were unprotected from retaliation by their employers.

State counterparts like the retaliation provisions of California's occupational safety and health laws,[22] and similar provisions in other jurisdictions, offer greater protections than the federal OSH Act.[23] Under California Labor Code Section 232.5, for example, employees have an enforceable right to disclose information about the employer's working conditions without restriction or fear of retaliation.[24] Under the statute and relevant case law, this right extends to disclosures to co-workers and to the general public — including media and press activity.[25]

Other laws are not specific to workplace conditions but relate to health and safety, or the health care field, more generally.[26] And, several jurisdictions have general or omnibus whistleblower protection statutes that protect employees from retaliation for opposing, revealing or speaking out against virtually any type of unlawful activity.[27] These are some of the most sweeping and powerful whistleblower laws in the country.

Moreover, the federal False Claims Act and equivalent state and local statutes incorporate whistleblower protections for employees who complain about or take action against alleged financial fraud on the government.

The FCA specifically protects employees from retaliation for engaging in "lawful acts … in furtherance of an action under this section or other efforts to stop 1 or more violations of this subchapter."[28] Examples of protected activities include investigating, gathering documents or evidence, consulting an attorney, complaining about or reporting potential FCA violations, and refusing to participate in possible fraud or taking action to remedy it.[29]

Finally, as set forth above, many jurisdictions have adopted common law torts of wrongful discharge/wrongful termination in violation of public policy, and/or breach of the implied contractual covenant of good faith and fair dealing.[30] While the body of jurisprudence on such claims differs, such torts may often apply in circumstances where an employee is terminated for complaining about, reporting or objecting to alleged unlawful conduct or practices.

These are just some examples of the protections that may be available to employees. While this catalog is far from comprehensive, it is indicative of the variety of laws and regulations that exist and the types of employee speech and expression that are protected.

Conclusion

There are a wide range of legal protections that may be applicable to employee speech and expressive activity both within and outside of the workplace. The details, interpretation and application of these laws vary by jurisdiction. Employers and employees should be familiar with the laws governing their workplaces, and employees who believe that they have been fired or otherwise penalized for speaking out may wish to explore the potential avenues for pursuing redress.



Andrew Melzer is a partner and co-chair of the wage and hour practice at Sanford Heisler Sharp LLP.

Whittney Barth is an associate at the firm.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.


[1] https://www.law360.com/articles/1317939/how-private-employers-can-limit-political-discord-at-work.

[2] Andrew Melzer and Whittney Barth, "Whether Employees Can Be Fired for Participating in Peaceful Protests," 2020 U. Ill. L. Rev. Online 221,  https://illinoislawreview.org/online/whether-employees-can-be-fired-for-participating-in-peaceful-protests/.

[3] See, e.g., Cal. Labor Code §§ 1101-1102; Conn. Gen. Stat. § 31-51q.

As explained in the Jones Day article, the Connecticut statute protects employees who are disciplined or discharged for any exercise of their First Amendment rights  "provided such activity does not substantially or materially interfere with the employee's bona fide job performance or the working relationship between the employee and the employer." Conn. Gen. Stat. § 31-51q. Case law applying the statute borrows from First Amendment and First Amendment retaliation jurisprudence, including the balancing test set forth in Pickering v. Bd. of Educ., 391 U.S. 563 (1968). See Karagozian v. Luxottica Retail N. Am. , 147 F. Supp.3d 23, 36-38 (D. Conn. 2015). Accordingly, private employees in Connecticut plainly do have enforceable protections for exercising their First Amendment rights—just by virtue of state statute. See also S.C. Code § 16-17-560 (unlawful to "discharge a citizen from employment or occupation" "because of political opinions or the exercise of political rights and privileges guaranteed to every citizen by the Constitution and laws of the United States or by the Constitution and laws of this State.").

[4] Eugene Volokh, "Private Employee Speech and Political Activity: Statutory Protection Against Employer Retaliation," 16 Tex. L. Rev. L. & Pol. 295, 297 (2012), https://www2.law.ucla.edu/volokh/empspeech.pdf Professor Volokh's article systematically catalogues the various types of statutes that exist in U.S. jurisdictions and is a valuable reference resource. See also Matthew T. Bodie, "The Best Way Out Is Always Through: Changing the Employment At-Will Default Rule to Protect Personal Autonomy," 2017U. Ill. L. Rev.223, 253-58 (2017), avail at: https://illinoislawreview.org/wp-content/uploads/2017/01/Bodie.pdf.

[5] See, e.g., Adams v. George W. Cochran & Co. , 597 A.2d 28 (D.C. 1991); Carl v. Children's Hosp. , 702 A.2d 159 (D.C. 1997) (en banc); Tameny v. Atl. Richfield Co. , 27 Cal.3d 167 (1980); Pierce v. Ortho Pharma. Corp. , 84 N.J. 58 (1980).

In Novosel v. Nationwide Ins. Co. , 721 F.2d 894 (3d Cir. 1983), the Third Circuit held that an employee would have a legally-cognizable wrongful discharge claim under Pennsylvania law after being fired for declining to take part in employer-mandated political and legislative activity—petitioning and lobbying for a bill favored by the employer. The court indicated that such a tort claim might be available whenever an employee's First Amendment rights are implicated, and invoked the line of First Amendment retaliation cases in the public employment context, including Pickering. The Third Circuit and Pennsylvania courts have since walked back some of these precepts and, according to commentators, Novosel has largely been rejected or ignored by other courts. See, e.g., Tiernan v. Charleston Area Med. Ctr., Inc. , 203 W. Va. 135 (1998); Grinzi v. San Diego Hospice Corp. , 120 Cal. App.4th 72, 80-84 (2004); Correa v. Working Families United for N.J. , Civ. No. 16–2217, 2017 WL 5951618 (D.N.J. Nov. 30, 2017); Barnett v. Aultman Hosp. , No. 5:11–CV–399, 2012 WL 5378738, at *7-9 (N.D. Ohio Oct. 31, 2012); but see Carl v. Children's Hosp. , 702 A.2d 159, 182-86 (D.C. 1997) (Schwelb, J., concurring); Emerick v. Kuhn , 52 Conn. App. 724, 741-42 (1999). In any case, even if there is no broad First Amendment exception to at-will employment incorporated into the common law of wrongful discharge, there may be more narrowly-framed public policy proscriptions applicable in particular circumstances.

[6] See, e.g., Wieder v. Skala , 80 N.Y.2d 628 (1992) (attorney had valid claim when he was fired for reporting ethical breaches by another firm lawyer).

[7] See also Bodie, supra n.2, at p. 266, advocating for the Restatement's proposed "change to the employment at-will default to make clear that the employer will not terminate employees for exercising their personal autonomy, as long as that exercise does not interfere with the employer's business or reputation."

[8] See 2020 U. Ill. L. Rev. Online at 224-27.

[9] E.g. Burlington N. & Santa Fe R. v. White , 548 U.S. 53 (2006).

[10] See 42 U.S.C. § 2000e-3(a), Title VII (prohibiting employers from discriminating against  any employee "because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter."); 29 U.S.C. § 623(d), ADEA (equivalent language); 42 U.S.C. §12203(a), ADA (same); 29 U.S.C. § 2615(b), FMLA ("It shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter").

[11] See, e.g., Sumner v. U.S. Postal Serv. , 899 F.2d 203, 209 (2d Cir. 1990) ("In addition to protecting the filing of formal charges of discrimination, [Title VII's] opposition clause protects as well informal protests of discriminatory employment practices, including making complaints to management, writing critical letters to customers, protesting against discrimination by industry or by society in general, and expressing support of co-workers who have filed formal charges.").

[12] See, e.g., id. (employee need only be "acting under a good faith, reasonable belief that a violation existed").

[13] See 29 U.S.C. § 215(a).

[14] E.g. Kasten v. St. Gobain Performance Plastics Corp. , 563 U.S. 1 (2011); Greathouse v. JHS Sec. Inc. , 784 F.3d 105 (2d Cir. 2015).

[15] 34 C.F.R. § 100.7(e) ("No recipient or other person shall intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Section 601of the [Civil Rights] Act or this part, or because he has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing, under this part.").

[16] See Jackson v. Birmingham Bd. of Ed. , 544 U.S. 167, 180 (2005) ("Reporting incidents of discrimination is integral to Title IX enforcement and would be discouraged if retaliation against those who report went unpunished. Indeed, if retaliation were not prohibited, Title IX's enforcement scheme would unravel."); CBOCS W. Inc. v. Humphries, 553 U.S. 442 (2008) (Section 1981); see also, e.g., Barrett v. Whirlpool Corp. , 556 F.3d 502, 512 (6th Cir. 2009) ("Section 1981 also prohibits discrimination based on association with or advocacy for non-whites").

[17] 29 U.S.C. §§ 157-158. Some states may have similar or equivalent protections. See, e.g., Conn Gen. Stat. § 31-104.

[18] See, e.g., https://www.nlrb.gov/about-nlrb/rights-we-protect/the-law/employees/concerted-activity  Pay transparency laws, regulations, and executive orders also protect employees for disclosing or discussing their wages or compensation. E.g. Cal. Labor. Code § 232; N.Y. Labor Law § 194(4); Colo. Rev. Stat. § 24-34-402(i); https://www.dol.gov/agencies/ofccp/faqs/pay-transparency.

[19] 29 U.S.C. § 660(c).

[20] See https://www.osha.gov/OshDoc/data_General_Facts/whistleblower_rights.pdf.

[21] 29 U.S.C. § 218c. Courts have reached competing conclusions on whether this provision pertains to Title 29 of the U.S. Code (all Labor provisions) or Title I of the ACA; while § 218c is placed within the FLSA, it was enacted as part of the ACA and would most sensibly apply in that context. See Richter v. Design at Work, LLC , No. 14–CV–650, 2014 WL 3014972, at *3 (E.D.N.Y. July 3, 2014) (citing authority on both sides of the question); Banks v. Soc'y of St. Vincent DePaul , 143 F. Supp.3d 1097, 1103-1104 (W.D. Wash. 2015) (holding that § 218c applies to ACA); Stewart v. Pemberton Township , Civ. No. 14–6810, 2016 WL 3466103, at *2 (D.N.J. June 23, 2016) (same).

For other whistleblower provisions overseen by OSHA, see e.g., Consumer Product Safety Improvement Act, 15 U.S.C. § 2087 (Whistleblower protection); FDA Food Safety Modernization Act, 21 U.S.C. § 399d (Employee protections); Consumer Financial Protection Act, 12 U.S.C. § 5567 (Employee protection); Sarbanes-Oxley, 18 U.S.C. § 1514A (Civil action to protect against retaliation in fraud cases).

[22] California Labor Code § 6310-6311.

[23] For a particular commentary on these laws, see https://sanfordheisler.com/can-i-be-fired-for-refusing-to-report-to-work-during-the-coronavirus-pandemic/.

[24] "Working conditions" is properly understood to include "conditions of employment"—such as "workload, office sizes, perquisites of employment, and 'work-life balance.'" Glassdoor, Inc. v. Super. Ct. 9 Cal. App.5th 623, 638 (2017); it encompasses matters such as hours, benefits, work rules and regulations, workplace safety, and the physical environment. See Chan v. Canadian Standards Ass'n , No. SACV 19-2162, 2020 WL 2496174, at *3 (C.D. Cal. Mar. 16, 2020); Massey v. Thrifty Payless, Inc. , No. G047734, 2014 WL 2901377, at *5 (Cal. App. June 27, 2014).

[25] See § 232.5; Glassdoor, 9 Cal. App.5th at 638 ("employees are entitled by statute to publicize their complaints about such matters."); Davis v. O'Melveny & Myers , 485 F.3d 1066, 1078-79 (9th Cir. 2007) (employer's arbitration secrecy rule could prevent discussion between employees and chill public disclosure of the employer's working conditions in violation of § 232.5).

[26] See, e.g., N.Y. Labor Law § 740(2) (prohibiting retaliation against employees who disclose or threaten to disclose to a supervisors or to a public body any legal or regulatory violation by the employer which "presents a substantial and specific danger to the public health or safety, or which constitutes health care fraud"); Cal. Health & Safety Code § 1278.5 (prohibiting healthcare facilities from discriminating or retaliating against employees for presenting a grievance, complaint, or report relating to quality of care, services, or conditions at the facility including unsafe patient care or conditions).

[27] See, e.g., N.J. Stat. § 34:19-3 (New Jersey Conscientious Employees Protection Act); Cal. Labor Code § 1102.5(b) (protecting disclosure of information to individuals with authority over the employee, other employees with the ability to take investigatory or corrective action, and government agencies or public bodies "if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee's job duties"); Cal. Labor Code § 98.6 (private right of action and remedies); Va. Code § 40.1-27.3, effective July 1 2020 (protection for reporting, in good faith, "a violation of any federal or state law or regulation to a supervisor or to any governmental body or law-enforcement official").    

[28] 31 U.S.C. § 3730(h).

[29] See, e.g., https://sanfordheisler.com/the-false-claims-act-protects-whistleblowers-from-retaliation/.

[30] See nn. 5 & 6, supra.

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