What Employee Speech Is Protected in the Workplace? Employees don't have a constitutional right to free speech at work, but employers still need to be aware of federal and state laws that do protect workers' speech in certain situations.
Now that the NLRB has a Republican majority, it has shifted a bit in its stance to a more employer-friendly position, Hernández noted. But employers still can't stop workers from discussing the terms and conditions of their employment, he said. State laws may also enhance workers' rights to discuss certain topics.
“Most of the time, the reason [people] fail to speak up is they feel the stakes are so high and other people are so opposed to what they might say that it doesn’t feel safe to speak up,” he explains. This insecurity and the employee reticence it engenders are more than corporate inconveniences.
This insecurity and the employee reticence it engenders are more than corporate inconveniences. According to Maxfield and Grenny’s research, an employee’s failure to raise their concerns about a project or workplace situation costs an organization an average of $7,500 in lost time and resources.
The First Amendment guarantee s citizens the protection of free speech from intrusion by the federal government, explained Grant Alexander, an attorney with Alston & Bird in Los Angeles. "The First Amendment does not apply to private actors, and employers are private actors.". Thus, government employees do have some First Amendment protections.
Thus, government employees do have some First Amendment protections. "Employees working in the private sector often [don't understand] that the constitutional First Amendment right to free speech applies to government employees but not employees working for businesses," said Christopher Olmsted, an attorney with Ogletree Deakins in San Diego.
The leading cause of silence is fear of repercussions . One study showed that 82% of whistleblowers suffered harassment, 60% lost their jobs, 17% lost homes, and 10% attempted suicide. Other causes include our unconscious need for belonging, a preference for the status quo, and willful blindness.
Today, movements such as #MeToo and #BlackLivesMatter are raising our social conscience and transforming attitudes toward speaking up. Brands are internalizing new norms, signaling commitment to fairness, equality, and justice. And the world is watching. Making a commitment public puts pressure on accountability.
Great bosses sense how teams feel and build relationships rather than rely on audits, rumors, or surveys to surface concerns. They hold regular sessions where they encourage employees to express their concerns. Great bosses also admit mistakes, which shows vulnerability and signals reassurance.
Given that codes of conduct, training, and audits alone don’t suffice in getting people to speak up when they witness improper behavior, other steps must be taken. Risk and compliance departments should engage with communications departments, and compliance-based tools must be supplemented with emotion-based triggers.