First Amendment Rights Stop at the Threshold of Private Employers

Workplace discussions about incendiary or sensitive issues can create havoc for an employer. Employees sometimes believe they have a right to say anything they want, anywhere, to anyone. While the First Amendment does apply to public employees, it does not apply to private employers, who have the right to curtail what could be upsetting water cooler discussions.

For example, those with fiercely held political or religious beliefs, whether about the current Trump Administration, abortion, or the ban on those from Muslim-majority countries or other hot-button topics, can create tension in the workplace. When they espouse those opinions and those with opposing opinions chime in, great disruption can occur.

Employers have the right to create and maintain productive work environments that are safe and nonthreatening to all employees, and thus can forbid discussion of divisive issues. Employees who violate those policies can legitimately be disciplined or terminated.

However, there are topics of conversation that an employer must allow and can lead to inordinate legal trouble if they are quashed. One such topic is compensation; employees cannot be forbidden to discuss their salaries or who makes what in their company. Likewise, employees have the right to discuss union activity and organizing. And they have protections if they discuss legitimate violations of the law. These whistleblower protections are strong in California; employers face grave legal danger of a retaliation claim if they terminate someone who has reported an example of wrongdoing.