Joseph, Greenwald & Laake principal Veronica Nannis recently authored a feature for Internal Auditor magazine detailing the timely topic of First Amendment rights and how those rights extend to employees. The feature follows her successful blog post, “Roseanne Had Every Right to Say What She Did, and ABC Had Every Right to Fire Her.”
In the feature, Veronica discussed actress Roseanne Barr, who was fired for using racially inflammatory language in a late-night tweet. Many argued that Barr, who was not at work at the time she published the tweets, should be protected by the First Amendment. However, Veronica pointed out that the First Amendment’s free speech protections do not cover private employer-employee interactions.
“The First Amendment to the US Constitution does not apply here because it limits the government’s censorship of speech. There is no ‘freedom of speech’ blanket protection while an employee is on the clock for a private employer,” Veronica wrote.
Nannis said that while the First Amendment provides all people the right to say what they want without threat or imprisonment, private employers can censor speech that occurs on the job, on the clock, or using employer services or devices. They can also censor speech that discriminates against, creates a hostile work environment for, or harasses another employee. In Roseanne’s case, she had also entered into a contract with her employer, ABC, s that contained a “morality clause” limiting and disciplining offensive speech or conduct.
In general, according to Nannis, employers can proscribe certain speech in the same way that they can mandate a dress code in the workplace. In addition, speech made outside the workplace can have employment consequences, even though it cannot be limited or prevented by the employer. In most “at-will” states -- meaning that absent a contract or special state statute a state can fire for any reason, or no reason at all – an employee can be fired for speech made outside the workplace. This includes social media postings, according to Nannis.
To read the rest of the feature, click here.
Nannis is a principal in JGL’s Qui Tam and Civil Litigation practice groups. She primarily represents whistleblowers who report fraud on the government in False Claims Act (qui tam) litigation. While she has experience in numerous types of complex, civil litigation, she focuses on healthcare and various kickback cases in federal courts across the country.