A federal appeals court has expanded the constitutional right of free speech for public employees who express their opinions in the workplace.

The December 15, 2021, HR Edge reported on a 2021 federal court decision upholding the termination of a regional transit authority bus driver for giving a television interview about transportation funding cuts in violation of the employer’s policy.   The employee, who also served as his union’s president, challenged the termination as a violation of his constitutional right to free speech.  The District Court determined that the speech was not protected by the First Amendment, as he gave the interview in his capacity as a driver and not as a private citizen.

On appeal, the First Circuit Court of Appeals reversed the decision.  The First Circuit rejected the District Court’s finding that the driver, because he was in uniform and behind the wheel of the bus during the interview, was speaking as an employee.  The higher court relied on the fact that the interview was not authorized by the employer, so while it was conducted at the workplace, it fell outside of his professional duties. In fact, the interview violated a policy requiring preauthorization of any communication with the media. The court also gave weight to the fact that the employee was identified by the television station as the union leader, and not as a driver for the transit authority.

The First Circuit next analyzed the transit authority’s contention that even if the speech was that of a private citizen, the restriction on employee speech was imposed to protect the authority’s “legitimate safety and efficiency interests.”  This argument had not been raised by the employer in the District Court, and the First Circuit summarily rejected it.  The court found that that a jury could reasonably conclude that the overly broad media policy in the employer handbook was not necessary to maintain efficient and safe operation of the transit authority.

Finally, the court considered whether the employee’s speech was a substantial or motivating factor in his dismissal.  While the stated reasons for the termination included several safety infractions in addition to the media policy violation, the evidence pointed to the interview as the primary reason.

It is important to note that the protected speech analysis of this decision is limited to public employees.  The First Amendment does not limit the rights of private employers to regulate employee communications. However, there are important speech protections for employees in the private sector:

• The National Labor Relations Act (“NLRA”) restricts an employer’s right to limit so-called “concerted activities” – workers’ communications about wages, hours and the terms or conditions of employment during non-work time in non-work areas. These protections are applicable to non-union employers and employees.
• Massachusetts law prohibits private employers from using threats of adverse employment action or promises of favorable treatment to influence employees in their votes or political contributions (M.G.L. ch. 56, § 33).

Private employers may wish to adopt and enforce a media (and social media) policy so that public communications related to the business are properly vetted by its management team.   In doing so, employers should be careful not to restrict speech that is protected by the NLRA and other laws.