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A Conversation on Workplace Speech

By Contributor
Law Special Coverage

After the Kirk Fallout, What the Law Protects — and What It Does Not

 

By Michael Lewis, Esq

After Charlie Kirk’s killing, workers across many sectors posted remarks that mocked or celebrated his death. Employers responded within hours. Some fired workers for policy violations; others suspended them pending review. Perhaps most notably, ABC temporarily pre-empted Jimmy Kimmel Live! after affiliates refused to carry the show and a federal regulator publicly criticized Kimmel’s on-air comments. Events moved quickly, and confusion spread just as fast.

The First Amendment restrains government. It does not create a job right to speak without workplace consequences. Private employers retain broad discretion, and public employers face a different constitutional test. Knowing where actual protection begins and ends will help you act quickly and lawfully.

 

What Counts as Protected Speech?

• Concerted activity under the National Labor Relations Act. Employees who speak with, or on behalf of, co-workers about pay, scheduling, staffing, safety, or other working conditions engage in ‘concerted’ activity. That protection covers many social media discussions directed to co-workers or seeking to start group action. It does not cover personal gripes, threats, disclosure of trade secrets, or harassing content.

• Anti-retaliation ‘opposition’ rights. Federal and state EEO laws protect employees who oppose or report discrimination in good faith, even if they are ultimately proven wrong on the facts. Crude insults and slurs fall outside that protection; specific, work-focused complaints usually fall inside it.

• State off-duty and political-activity laws. Some states protect lawful off-duty conduct or political activity outside work. New York protects many lawful off-duty political and recreational activities. California limits employer control of political activity. Colorado protects broad lawful off-duty conduct, subject to narrow exceptions. Connecticut’s statute extends free speech protections to private employees on matters of public concern, balanced against legitimate business interests. Multi-state employers should map these rules before disciplining off-duty posts.

Michael Lewis

Michael Lewis

“The First Amendment restrains government. It does not create a job right to speak without workplace consequences. Private employers retain broad discretion, and public employers face a different constitutional test.”

• Public sector balancing. Government employers must apply the Pickering/Garcetti framework. Speech by a public employee as a citizen on a matter of public concern can receive protection unless it impairs efficiency or disrupts operations, while speech made as part of job duties receives no constitutional protection.

 

What Does Not Count as Protected Speech?

• Policy-violating speech. Private employers may discipline speech that breaches social media, civility, confidentiality, or brand guidelines, so long as the rule and its enforcement do not infringe concerted activity rights or a state protection.

• Harassment and threats. Speech that targets protected classes or creates a hostile environment falls outside any protection and often requires prompt action.

• Disclosure of confidential or proprietary information. Revealing non-public business information, client data, or trade secrets invites discipline and potential legal remedies.

• Speech that predicts or causes disruption. Even in the public sector, officials may discipline speech that reasonably threatens operations, safety, or public trust after applying the required balancing test.

 

How the Rules Apply to Current Events

• Kirk-related terminations. Employers dismissed or suspended workers who posted content perceived as celebrating violence or taunting the victim. In private workplaces, the analysis turned on clear policy language, the connection to the employer’s brand, and whether the post involved co-workers or working conditions. Where a post targeted protected classes, anti-harassment duties reinforced the decision. Where a post was unrelated to working conditions and did not fall under state protection, at-will principles typically allowed discipline. Public employers had to apply the constitutional balancing test and document expected disruption before acting.

• The Kimmel pre-emption. ABC removed the show from its schedule after affiliates announced they would not air it and after public criticism from a federal regulator. While the network reversed course and reinstated Kimmel a week later, two practical lessons remain. First, business partners can force rapid action; affiliate refusals and advertiser pressure often shorten timelines and narrow options. Second, overt regulatory attention raises stakes for content decisions in media and adjacent industries. Employers should plan in advance for partner pushback and regulatory scrutiny, with ready playbooks and internal sign-offs.

• Other instructive precedents. Google’s termination of an engineer over a workplace memo survived a federal labor challenge because the content did not qualify as protected concerted activity and risked discriminatory impact. ESPN suspended an anchor for tweets that violated its social media rules, a reminder that brand and business relationships can justify discipline even when speech occurs off the clock. Franklin Templeton prevailed against a wrongful termination suit after firing an employee whose viral conduct damaged trust and reputation. Each example turns on the same themes: a clear policy, a documented business rationale, evenhanded enforcement, and — where required — a constitutional or statutory analysis.

 

A Clean Decision Path for Employers

When a post or clip surfaces, move in sequence and record the answers.

• Concerted or not? Does the speech seek to involve co-workers about working conditions or present a group complaint to management? If yes, treat it as potentially protected and consult counsel before acting.

• Harassment or threats? Does the content target protected classes, include slurs, or threaten harm? If yes, act under anti-harassment and safety policies.

• Public or private employer? If public, apply the citizen speech and disruption balancing; if private, proceed to the next step.

• State protections. Do any off-duty or political activity statutes apply? If yes, analyze the statute’s scope and exceptions.

• Contracts and past practice. Do CBA provisions, employment agreements, morals clauses, or progressive discipline rules constrain options, and have you enforced similar cases consistently?

• Confidentiality and brand risk. Did the content reveal non-public information or predict reputational harm with customers, partners, or regulators? If yes, incorporate that rationale into your file.

• Proportional response. Choose counseling, suspension, or termination based on the conduct, the role, and the risk, and issue a neutral, policy-based communication.

 

Policy and Training Steps That Work

Rewrite social media, civility, and confidentiality policies with concrete workplace examples. Cross-reference complaint channels and anti-retaliation language. Add explicit savings clauses for NLRA rights and any state-law protections. Train managers to escalate issues to HR and legal, and to avoid engaging in online arguments. Maintain a short internal script and an external statement template for high-profile events. Consistency across viewpoints reduces legal risk and public blowback.

 

Takeaway

Citizens hold broad speech rights against the state; employees do not gain broad job rights for speech in private workplaces. Your safest course is clear policy, measured triage, and disciplined, neutral enforcement, with special care for concerted activity, anti-harassment duties, state protections, and — if you are a public employer — the constitutional balancing test. When leaders understand what the law actually protects, they act faster and with less risk.

 

Michael Lewis is an attorney at the Royal Law Firm who helps employers resolve workplace challenges. He counsels and defends businesses across Massachusetts and Connecticut, handling matters involving discrimination, harassment, retaliation, wage and hour claims, restrictive covenants, and breach of contract. His practice includes litigation in state and federal courts and before administrative agencies.

Workplace Policies Are Often the Key to Courtroom Challenges

By Contributor
Law

Discipline for Social-media Speech

By Kevin Maynard

 

In any given week, a news outlet or website will spotlight an employee being suspended or fired by an employer for a social-media post. These posts range from expressions of political sentiments and individual beliefs to commentary on the employee’s workplace or even the employer itself.

With the prevalence of social media in the daily lives of most individuals, employers are increasingly disciplining their employees for off-duty social-media posting, and employees are pushing back with legal actions.

In the resulting legal disputes, employees often mistakenly believe that the First Amendment protects all in-person and online speech. In reality, the First Amendment’s free-speech protection is limited to protection against government action. While public employers have a First Amendment obligation to respect some of their employees’ speech, private individuals and employers generally have no such constitutional obligation.

 

Public Employee Speech

Generally, a public employee’s speech is protected when it relates to a matter of public concern or importance. However, this is not an absolute, and a court must balance an employee’s right to free speech against an employer’s interest in an efficient, disruption-free workplace.

For example, a public-school teacher brought a lawsuit against her school district after being fired for making negative blog posts regarding supervisors, union representatives, and fellow teachers. In upholding the termination of employment, the Court of Appeals in the Ninth Circuit ultimately held that the blog posts harmed the Washington State public-school district’s legitimate interest in the efficient operation of its workplace because other teachers refused to work with the former teacher, and the termination was, therefore, appropriate.

Kevin Maynard

Kevin Maynard

“In the resulting legal disputes, employees often mistakenly believe that the First Amendment protects all in-person and online speech. In reality, the First Amendment’s free-speech protection is limited to protection against government action.”

Earlier this year, a public-school teacher in Fall River was fired for posting allegedly political and racist comments on social media. The teacher filed a lawsuit in Massachusetts federal court, claiming the city did not have “good cause” to terminate her employment and that her teachers’ union breached its duty of fair representation by not providing her any representation following the termination of her employment. An arbitrator to whom the matter was referred by agreement has reportedly found in the teacher’s favor, ordering reinstatement to her position and payment of all back wages. According to her attorney, the teacher intends to sue for retaliation and defamation.

 

Private Employee Speech

Unlike in the public sector, the First Amendment generally does not apply to the actions of private employers. However, private employers even in a non-union setting must be compliant with the National Labor Relations Act, which gives private employees the right to engage in “concerted activities” for the purposes of collective bargaining.

Examples of concerted activities include an employee talking with co-workers about working conditions, circulating a petition about improving working conditions, or joining with co-workers to talk directly to their employer. Regardless of whether the concerted activity occurs in person or over social media, an employer cannot interfere with such an activity taking place during or after work hours. Beyond this concerted-activity issue, the concepts of ‘at-will employment,’ ‘good cause’ for termination, or other common law or contractual issues may be relevant.

 

State-specific Protection for Lawful Off-duty Activity

Some states have laws that protect lawful off-duty activities of both public and private employees. In Colorado, an airport-operations supervisor was terminated for posts on her Facebook page regarding her support for preserving the ‘Rebels’ mascot of her high school, particularly one post that depicted the mascot with the Confederate flag.

A Colorado court vacated her termination of employment because it violated a Colorado statute making it unlawful to terminate an employee for engaging in a lawful activity outside of work. California, Louisiana, New York, and North Dakota have similar laws prohibiting employers from taking adverse employment actions based on lawful off-duty activities. Massachusetts has not enacted such a law.

 

Advice for Employers

Employers may choose to adopt social-media policies that address off-duty conduct. Anti-harassment and anti-discrimination policies should also address off-duty social-media activity. Any social-media policies should be enforced reliably to ensure the consistent treatment of employees.

In enforcing a social-media policy, employers must assess the effects of an employee’s social-media post on a workplace, including its impact on the ability of employees to work with one another. Social-media policies can be a helpful way for employers to set clear expectations regarding the standard of online conduct they expect of employees. The absence of such a policy can make the results of an employee’s challenge to an employer’s disciplinary action for inappropriate social-media posts much more unpredictable.

 

Kevin Maynard is an employment law and litigation partner at Bulkley Richardson; (413) 272-6200.