Following the death of Charlie Kirk, there has been considerable discussion about what consequences properly follow an employee who speaks about a matter of public concern. Recently, McCarthy Lebit’s Co-Managing Principal Ann-Marie Ahern appeared on our local NPR affiliate to discuss the issue.
“Free Speech” Rights
Many of these discussions have understandably focused on political or social issues like “cancel culture” or “free speech” rights. From a legal perspective, however, these matters are mostly irrelevant because First Amendment “free speech” rights do not apply between private-sector employers and employees. Because the Constitution’s Bill of Rights restricts the government, not private employers, most employees’ First Amendment rights are not implicated by a termination or suspension. (Of course, if a government actor – like the Federal Communications Commission (FCC) – influences the decision, then constitutional rights may be implicated.)
But for a public-sector employee, the analysis is completely different because the employer is the government. Therefore, the constitutional prohibition on punishing a person for speech applies. Public sector employees can sue their employer for “First Amendment Retaliation” if they can show that (1) they were engaged in constitutionally protected speech; (2) they were subjected to an adverse employment action “that would deter a person of ordinary firmness from continuing to engage in that speech or conduct;” and (3) the protected speech was a substantial or motivating factor for the adverse employment action. Whether an employee is engaged in “constitutionally protected speech” is determined by a court, evaluating whether the employee spoke as a citizen on a matter of “public concern” (meaning anything of political, social, or other concern to the community) and balancing the interests of the employee and the employer.
Protected Employee Speech
Meanwhile, all employers, private and public alike, are prohibited from retaliating against employees if those employees’ “speech” falls into one or more of the many categories of “protected activity” or “whistleblowing.” Employment civil rights laws, for example, make it illegal to fire an employee for expressing concerns about illegal (like not paying overtime when it is due) or discriminatory (like sexual harassment) behavior in the workplace. So while a private sector employer might be allowed to fire an employee for claiming that Charlie Kirk’s positions were “racist,” that same employer would be prohibited from firing an employee who complains that “Charlie Kirk has inspired people to be racist in this office.”
Meanwhile, many laws encourage employees to report wrongdoing (itself a form of “speech”) and also protect employees from retaliation for doing so. The Defend Trade Secrets Act, for example, is a federal law establishing that an employee can disclose information to a government official or in a lawsuit – even if that information is a potential “trade secret” of the employer – provided the employee meets certain requirements for disclosure. 18 U.S.C. § 1833(b). Generally speaking, those requirements require the employee to take precautions against unnecessarily disclosing sensitive information beyond reporting to the government. To be clear, those requirements do not include recording employees on camcorders as the pitch of their voices continues to escalate:
Ohio also has its own whistleblower protection, which I’ve previously written about here.
Whether employees can be fired for something they said is a complicated issue that depends on the nature of the employment and the content of what was said. If you have a question about such rights, an experienced employment attorney would be an invaluable resource to help you understand your options and protect your interests.
For more information or to seek counsel from our Employment group, please reach out to request a consultation or call us at 216-696-1422.
