CAN I FIRE MY EMPLOYEE WHO KEEPS YELLING “ROLL TIDE” AT THE OFFICE?  FREEDOM OF SPEECH RIGHTS IN THE WORKPLACE

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Auburn fans are just tired of it.  All they hear about is The Process.  “Nick Saban and Bear Bryant are the best coaches in the history of the universe.”  “Roll Tide!!!”

If I fire an employee who yells “Roll Tide,” am I violating his First Amendment Freedom of Speech rights?  For private employers, the legalistic answer to this question is “No.”  As discussed below, however, there is a lot of employee speech that is protected.

The United States Constitution and its amendments bestow rights on citizens with regard to their interaction with government.  As a result, the First Amendment guarantees that government will not restrict any citizen’s right to freedom of speech.  But, private employers are not the government.  As a result, from a pure constitutional law perspective, private employers are not controlled by the First Amendment.  Thus, in most circumstances, a private employer cannot violate an employee’s free speech rights.

In a private office, if my staff is composed of Auburn fans, and I am an Alabama fan, I can fire them for saying “War Eagle” in the workplace.

But, there are always exceptions to the general rule.  While the First Amendment does not protect employee speech in the private workplace, there are plenty of laws that do provide protection for employee speech.  Virtually every federal employment law protects employees who speak out against discrimination in the workplace.  The NLRB and Executive Orders from the President protect employees who speak out about working conditions — particularly employees who talk to each other about wages.

Unfortunately for college football fans, there is no law which protects employees who scream “Roll Tide” or “War Eagle” at work.  But, if your employees are making other statements that may be upsetting to you, be careful before taking action.

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