Carlin Meyer, law professor at New York Law School and employment law specialist
If you’re in the private sector in almost every state in the country, you’re governed by employment-at-will, meaning your employer can fire you for just about any reason, unless limited by a statute or court rule. Statutes have made inroads on that doctrine and now you can’t be fired for discriminatory reasons, for instance. But Connecticut is the only state with laws protecting workplace free speech. Everywhere else, a private employer can fire you for exercising your free speech rights in the workplace. Most of case law has upheld employer right to control employee speech.
The law develops by being presented with cases. If something (an employer does) is outrageous enough, it may inspire the attention of the legislature or even the common law courts.
I’m not a fan of employment-at-will. It’s a 19th century doctrine that arises out of the belief in equality in the market. If an employee doesn’t like the job, he or she can quit. If the employer doesn’t like something the employee does or says, he or she can fire the employee. But it ignores the enormous power gap between employers and employees.
I think a statute on the order of New York’s labor law 201-d, that gives employees some right to control their private time unless it negatively impacts the business, is a good idea. But even 201-d does not broadly protect employee speech rights. A statute like it protecting speech could gain momentum, if people are outraged enough by what employers do to bloggers. Employers are influenced by public opinion. Just look at Nike’s overseas labor problem.
First Amendment protection applies in public sector because it’s the government acting. But it is rather limited protection: employees are only protected when talking/blogging about “matters of public concern” and not when they are talking about matters internal to the employer and not of significant interest to the public. Moreover, even if the speech is about matters of public concern (whether the employer is polluting, or cheating customers or whatever), there’s a complex assessment to determine if the employer’s action is justified on other grounds (lowering employee morale, undermining employer authority or reputation, etc. etc.)
But many states offer strong whistleblower protection to public employees, so that if their blogging could be construed as going public with information about mismanagement or fraud, they could come within those statutes. That’s true for private employees as well, but the statutes tend to require a report to a public body, not simply on-line exposure. Most whistleblower statutes do not, for example, protect employees who go to the press. And some, like New York’s, only protect private employees who blow the whistle on substantial and specific threats to public health and safety, and only if the employee has first gone to the employer and given them an opportunity to cure (the problem).
I think bloggers should expect to be vulnerable unless they can (a) get statutes passed; (b) get employers to adopt fair policies and adhere to them; (c) get lots of public sympathy (which usually goes for naught without a statute.) I also think bloggers would do best to ally with others who want workplace speech protection (employee organizations; CLU types, employment anti-discrimination advocates) so that it doesn’t become limited to a “tech” audience and concern.