December 20, 2022
Many people trust the misleading phrase: “It’s a free country, I can say what I want.” That’s not entirely true, especially when it comes to freedom of expression in the workplace.
The First Amendment protects government employees from adverse employment action for exercising their free speech rights. However, the First Amendment does not establish or support a public policy that prohibits private employers from firing their employees for exercising their First Amendment rights.
This means that an employee cannot sue a private employer for a violation of the First Amendment because the First Amendment only restricts the government. There must be a legal basis to file a claim for wrongful termination based on freedom of expression.
An example of freedom of expression protected by law is when an employee complains about working conditions. If there is a condition at work that is dangerous, the employee has the right to make complaints about the work environment.
There are some protections provided by the law concerning political activity. It is illegal for an employer to prevent employees from participating in politics (actively or expressing their opinions) or running for public office. If an employer attempts to coerce or influence employees by threatening dismissal or loss of employment if they continue or refrain from following a particular political activity course, that is also unlawful.
However, if a company has a neutral dress code that states that employees cannot wear clothing with personal or political messages, then the employee was justifiably fired for a dress code violation, regardless of the fact that your face mask, polo shirt, etc. included a political statement.
Activity outside of work
Employers shouldn’t be able to dictate what an employee does outside of work. Labor Code § 98.6 prohibits employers from firing, discriminating, retaliating, or taking adverse action against an employee for “legal conduct that occurs during non-working hours outside of the employer’s premises.”