Dallas Employment Trial Lawyer Harjeen Zibari
When Americans think of “free speech,” they often think of the First Amendment. And it’s true-the First Amendment is one of our most cherished constitutional rights. But when it comes to your job, especially in a workplace that is privately owned and not part of the government, your rights may not be what you think they are.
Here’s what every employee should understand about free speech in the workplace.
The First Amendment and Private Employers
Put very simply, the First Amendment protects people from government restrictions on speech. So, the government cannot punish you for what you say, i.e., put you in jail for saying you don’t like a certain political candidate.
But private employers aren’t the government. In most situations, your boss is not bound by the First Amendment. That means if you speak up at work, post something controversial online, or say something your employer doesn’t like, the company often can discipline you-or even fire you-without violating your constitutional rights.
At-Will Employment and Speech
Texas is an at-will employment state. This means that an employer can terminate employment for almost any reason, as long as it’s not an illegal reason (such as discrimination based on race, religion, or sex). That includes your speech.
If your employer dislikes your political bumper sticker, your social media post, or your criticism of company policy, they may let you go. Free speech protections in the constitutional sense usually don’t shield you in this context.
When Speech Is Protected at Work
That said, some important protections for speech do exist in private workplaces—just not under the First Amendment. These protections come from labor laws and civil rights laws.
•Concerted Activity (National Labor Relations Act): Federal labor law protects employees when they join together to discuss or improve workplace conditions, pay, or benefits. For example, if you and your coworkers complain together about low wages or unsafe conditions, your employer can’t legally retaliate just because of that speech. But that’s because of the NLRA, not the First Amendment.
•Anti-Discrimination Laws: If you speak up about discrimination or harassment based on race, sex, disability, or another legally protected category, you’re engaging in “protected activity.” Employers cannot punish employees for filing complaints or voicing concerns about unlawful discrimination. Similarly, your coworkers do not have the right to say discriminatory or derogatory things just because of the First Amendment.
•Whistleblower Protections: Certain laws, like the Occupational Safety and Hazard Act, Sarbanes-Oxley, and Dodd Frank, protect employees who report illegal activities, safety violations, or fraud. Employees who make these reports are legally protected from retaliation.
Social Media and Off-Duty Speech
A common question is: “Can my boss fire me for something I post on my personal social media?” The answer is often yes. Unless your post is related to workplace rights (such as discussing pay, discrimination, or safety), your employer generally has the power to discipline you for online activity-even outside work hours. Many employers will have wide-sweeping “conduct” or “ethics” provisions in their employee handbooks dictating that they reserve the right to terminate employees for behavior they disagree with, which employers will cite to when terminating an employee for their out-of-work speech.
Myth vs. Fact: Free Speech at Work
•Myth: “The First Amendment protects me at work.” Fact: The First Amendment protects you from government restrictions, not private employers.
•Myth: “My boss can’t fire me for what I post on social media.” Fact: In most cases, they can—unless your post relates to workplace rights or your state provides extra protections.
•Myth: “Talking about pay with coworkers can get me in trouble.” Fact: Federal labor law protects employees who discuss wages and working conditions together.
•Myth: “Whistleblowers are always safe from retaliation.” Fact: Protections exist, but they depend on what you report and under which law. It’s not absolute.
Balancing Rights and Responsibilities
It may feel frustrating to learn that free speech doesn’t fully follow you into the private workplace. At the same time, employees are not powerless. Federal, state, and local laws do carve out important protections for collective action, anti-discrimination complaints, and whistleblowing. Knowing the difference between personal speech and protected workplace activity can help you navigate your choices better.
Do you think your employer took an unlawful action against you? Feel free to contact me in Dallas or one of our other talented Texas employment lawyers in Austin or Houston today.