Excerpted from a Levy Employment Law LLC Blog by Tracey I. Levy

Absolutely yes – depending on the circumstances. While we have grown up with the notion that free speech is sacrosanct in this country, the First Amendment actually only prohibits the government from restricting individuals’ speech. The restriction on censorship does not extend to private employers and, to be clear, not-for-profit organizations are also private employers.

Protections of Employee Speech

That does not mean that employers can control or punish all employee speech. Our laws provide numerous circumstances in which employee speech is protected. Under the National Labor Relations Act, employees have the right to discuss terms and conditions of their employment with other employees, including even some degree of trash-talking their employers. Under federal and state laws, employees are protected against retaliation as “whistleblowers” for reporting a range of employer activities that they believe to be unlawful. Employees are similarly protected against retaliation for reporting or speaking out against harassment or discrimination based on certain protected characteristics.

When Employers Can Act on Speech

Outside those exceptions, however, employers generally have the discretion not to hire, or to terminate employment, based on an employee’s speech. For example, last year in McVey v. Atlanticare Medical System (2022), the New Jersey Appellate Division held that the medical system acted lawfully in terminating the employment of a corporate director for having posted on her personal Facebook account racially insensitive comments about the Black Lives Matter movement that violated the employer’s social media policy. The Court held that neither the First Amendment nor the New Jersey Constitution reflect a clear mandate of public policy that prohibit the employee’s termination.

Responding to Recent Antisemitic Events

In other contexts as well employers can choose not to hire, withdraw job offers or terminate the employment of individuals whose speech is inconsistent with the mission or values of the organization. It is how many of the top law firms in the country could write to the deans at 100 law schools this past week, warning that antisemitic activities, including rallies calling for the death of Jews or the elimination of the State of Israel, are a form of harassment that would never be permitted in their workplaces and that they expect to be addressed at law school campuses. It is how two such firms could have rescinded job offers to law students at NYU, Harvard and Columbia for widely distributed statements sent on behalf of student organizations, pronouncing “Israel bears full responsibility” for the October 7, 2023 terrorist actions of Hamas.

Words Can Do Harm

Words are sufficient to incite violence. The events that have unfolded on college campuses this past month and the January 6, 2021 riot on the U.S. Capitol are two very stark recent examples of that. And so, if your speech outside work is incendiary, is racist, or otherwise conflicts with the values of your employer, you may, indeed, find yourself out of a job.

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