Common Misconceptions About Employment & Free Speech

In this day and age, there is no little amount of confusion regarding what can and cannot be said in the workplace. The rules are different for public employees and private employees, but regardless of where one works, the right to free expression is more limited in the workplace than many of us realize. Although the law protects freedom of speech and employer retaliation, not all speech is protected.

What Constitutes A “Wrongful” Termination?

Retaliation is defined as causing negative consequences for an employee because they exercised their rights to engage in protected speech or activity. For example, an employee may not be disciplined for filing a complaint with human resources or state authorities, because their right to do so is protected by law. However, conduct that does not rise to the level of ‘protected’ speech is still actionable, and employees can be terminated for engaging in conduct that an employer disapproves of, depending on the circumstances.

South Carolina is, as most states are, an at-will employment state. This means that unless the reason given is against public policy (such as firing an employee for their union activities, or because of a dislike of some characteristic such as national origin or race), an employer may terminate an employee for any reason, at any time. The opposite side of this is that an employee is free to leave a job at any time. Still, many employees, if fired for reasons they find “unreasonable” or harsh, will believe themselves to have been unjustly terminated, when in reality, the law is almost always on the employer’s side.

Public vs. Private Employers’ Rights

Another misunderstanding many have is that they believe the First Amendment applies to private employers in the same manner as the government. In reality, the text of the First Amendment states explicitly that “Congress shall make no law” restricting the free exercise of religion or of free expression (among other freedoms) – in other words, the law only applies as written to the federal government, not to private entities such as companies.

First Amendment jurisprudence has extended regulations to private employers, but the principles of ‘protected’ speech or activity still apply: if you are terminated or disciplined for exercising your rights, such as taking leave under the Family Medical Leave Act (FMLA), you will likely have a case for wrongful termination. The same is true if you are able to prove you were retaliated against due to an immutable characteristic, such as race or gender. If neither of these is true, your case will likely not be sufficient to allege discrimination.

Seek An Attorney’s Assistance

The interplay between free speech laws and workplace rights can be very complex, and many people wind up having questions even after doing their research. Getting the advice of an experienced legal professional can help immeasurably. Attorney A. Christopher Potts and his firm of Hitchcock & Potts are happy to try to help you understand which path forward is the best one for you and your family to take. Contact our Charleston offices today at 843-577-5000 or fill out a request on our website to make an appointment.