Political Speech and Work: You Plastered Your Opinion on Social Media. Can You Be Fired?
| Publication year | 2020 |
| Author | By Marina Kats Fraigun, Esq. |
By Marina Kats Fraigun, Esq.
Marina Kats Fraigun is a Plaintiff's employment attorney. She has been practicing for more than 22 years. She was selected as one of the Top 50 Women Lawyers in Southern California in 2019, 2020, and 2021, and the Top 100 Lawyers in Southern California for the same years. She is an aggressive Plaintiff's side employment attorney who has been referred to as a "pit bull." Marina also teaches in the Paralegal Program at Los Angeles Valley College. In addition to being a passionate advocate and founder of Fraigun Law Group, Marina is happily married and is raising two teenage sons.
An engineer was fired for attending a rally. A public-school teacher is fired for posting memes about George Floyd on her Instagram. An employer got an angry email from a customer that one of her employees posted a swastika on Facebook.
Can these employees be fired? Should they be? The answer is a resounding "Maybe."
The issue of political speech, both in real life and on social media, is current and complicated, both for employers and employees.
California employment is presumed to be at-will.1 However, both California and Federal law contain many different exceptions to the at-will doctrine—prohibitions against discrimination and retaliation on the basis of protected classes and protected activities. Some are commonly known— like FEHA's prohibition on discrimination on the basis of race, color, religion, sex/gender, gender identity, gender expression, sexual orientation, marital status, medical condition, national origin, ancestry, disability, genetic information, and age.2 Other exceptions are less commonly known— like political speech and legal off duty conduct.
Exploring employment protections for political speech and legal off duty conduct requires an exciting journey through constitutional, state and federal statutory, and common law.
"I have the right to free speech." This expression is as overused and misunderstood as any in American culture. Most believe that their First Amendment right to free speech protects their right to say anything, anywhere, at any time. The truth is not nearly so clear.
The First Amendment generally does not apply to private employers. Rather, in the employment relationship, it protects government employees from "state action." Even then, protection is not automatic.
If you are a state or federal employee, then you are protected from retaliation for exercising free speech by the First Amendment and the Fourteenth Amendment. This means that when you exercise your right to free speech, your government employer cannot retaliate against you with negative employment action. The law regarding free speech can be very complex, however, and not all speech and action is protected.3
Further, First Amendment protections extend only to statements made by a public employee as a private citizen. In Garcetti v. Ceballos4, the Court ruled that public employees do not have a First Amendment protection for speech issued as part of their official duties. The Garcetti decision took away one tool from public employees, who were then left to rely on other statutes and common law. Likewise, private employees must rely on other applicable laws.
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Therefore, while the First Amendment provides protections in some narrow cases, it is limited in both application and scope.5
Unlike the First Amendment, the application of the National Labor Relations Act (NLRA) is much broader in its scope than most believe. The NLRA applies to all employees within the United States, not just union members.
Under the NLRA, employees have the right to engage in "protected concerted activity"...
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