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Do I have the right to free speech at work?

It is a scenario some workers fear: to say something that an employer dislikes and to be fired because of it. As Forbes explains, the First Amendment protection of free speech rights does not typically apply to workplaces. In many cases, an employer may sanction or fire someone for what they say. However, there are important exceptions that can land an employer in hot water for terminating a Washington D.C. worker for his or her speech.

First, employers may step over a legal line if they try to ban their employees from organizing for the purposes of collective bargaining. The National Labor Relations Act (NLRA) considers speech geared towards unionizing or collectively bargaining to be protected speech. Exceptions might be made if the speech is abusive or violent, but generally the law will not permit employers to sanction employees if they advocate for collective bargaining.

A worker's civil rights may also be violated if the employer is singling out a specific group of people. An employer will generally have no legal problem if the employer bans a form of expression because it might obstruct productivity in the workplace. But if it appears a speech or expression ban is adversely affecting only African-Americans or Latinos or LGBT individuals, the policy could be discriminatory in nature.

However, even if federal law does not explicitly protect forms of speech at the workplace, that does not mean local municipalities do not extend their own protections to their communities. In Washington D.C., under the D.C. Human Rights Act, an employer cannot discipline or fire a worker because of the worker's political speech. This is because the D.C. Human Rights Act makes political affiliation a protected class.

Additionally, if you work for the federal government, your right to free speech is broader than if you were working in the private sector, though there are still instances where a federal worker might be sanctioned for saying something. If an employee makes a statement that has a negative impact on the employer's ability to perform its task and the statement is not of public concern, that speech may not be protected. Conversely, a federal worker who says something that is part of an authentic news story and is voiced as an ordinary citizen and not as a government representative, it is more probable that such speech will be protected.

The information provided in this article is for educational purposes. It should not be interpreted by readers as legal advice.

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Bernabei & Kabat, PLLC
1400 16th Street, NW
Suite 500
Washington, DC 20036

Phone: 202-745-1942
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