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Samuel Burke: Free speech at work

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Samuel Burke

The NFL protests and President Donald Trump's reaction to them raise interesting issues about political speech and expression in the workplace. In response to the president's comments, many commentators seem to brush off the idea that someone can be fired for exercising their right to free speech. But are they right? 

Samuel Burke
Samuel Burke

No doubt we are entitled to free speech under the First Amendment of the United States Constitution, but does that mean we are free to express our political views whenever or wherever we want, specifically where we work? In Texas, the short answer is, probably not.

The vast majority of Texans work for private employers. Generally, the Constitution protects Americans from government action. Private employers are rarely government actors. 

In one of his many dissenting opinions, Justice Antonin Scalia expressed this idea well when he wrote: "This is a free country. Every American has the right to express an opinion on issues of public significance. In the private sector, of course, the exercise of that right may entail unpleasant consequences. Absent some contractual or statutory provision limiting its prerogatives, a private-sector employer may discipline or fire employees for speaking their minds."

Like the U.S. Constitution, the Texas Constitution provides a free speech guarantee. And, like the U.S. Constitution, courts have said that the protections of that free speech guarantee extend only to government actors. The Texas Supreme Court has written that "the guarantees of the Texas Bill of Rights generally apply only against the government. ... Similar protections do not exist for action by private individuals."

What does this mean for the average Texas employee? Can you engage in political protest during work events? If your employer does not want you to engage in political speech, no, you cannot. 

Texas is an at-will employment state. That means, unless you have a written agreement to the contrary, a private employer is free to terminate you for almost any reason or no reason at all. The exceptions to this rule for medium-size to large employers arise not out of the U.S. Constitution but out of statutory protections such as Title VII of the Civil Rights Act and similar enactments contained in the Texas Labor Code. Title VII and the mirroring Texas Labor Code provisions do not apply to small employers, i.e., those that employ 15 employees or less. 

Generally, these statutes protect employees from discrimination based on sex, religion or national origin. Employees cannot be discriminated against because of who they are or where they come from; they can be discriminated against for what they say.

In contrast to private employees, government employees do have some protections when they engage in political speech in the workplace. If a government employee is terminated for exercising their right to free speech regarding political matters, that decision must survive a balancing test that weighs the employee's interest in commenting on matters of public concern against the employer's interest in workplace efficiency and harmony. 

Of course, the key distinguishing factor of between public and private employers is that the First Amendment applies to "government actors." While the private-versus-public-employer distinction is usually easy to make, for private employers that contract with government entities, care should be taken to understand if their employment decisions can take on the character of government action and that the contracts entered into with the government entity do not extend free speech protections enjoyed by public employees to the private employer's employees.

Interestingly, while most all political speech in the workplace is not protected, the Texas Elections Code does protect the ultimate expression of political speech — the right to participate in certain political activities and, most importantly, the right to vote. The following specific protections apply to the right to vote in Texas.

1. An employer may not refuse to allow an employee to miss work to attend a political convention or subject the employee to a penalty for attending.

2. An employer may not refuse to allow an employee to miss work on Election Day to vote. However, if the polling times include two consecutive hours outside of the employee's working hours, this provision does not apply.

3. An employer cannot retaliate against an employee who has (1) voted a certain way or (2) refused to reveal how he or she voted. The employer cannot threaten or subject an employee to loss of wages, reduce their wages, or reduce any other benefit of employment.

Perhaps ironically, most Texans do not have the right to wear their political views on their sleeves at work, but they do enjoy the right to keep their politics to themselves. 

At least in Texas, the commentators who casually conclude that political speech in the workplace is protected should remember the wisdom of the Peanuts character Linus: "There are three things I have learned never to discuss with people [at work] ... religion, politics and the Great Pumpkin."

SAMUEL B. BURKE is certified by the Texas Board of Legal Specialization in civil trial law. He can be reached at sburke@dentonlaw.com or www.dentonlaw.com.