It is a common misconception that the First Amendment protects a person’s right to say whatever they want, whenever they want. The largest limitation on the right to free speech is that it only applies to governmental actors. This means that private employers, as a general rule, may implement policies limiting employee speech, so long as those limitations do not infringe on other rights afforded employees under federal law.
Although employers should be aware of—and make efforts to comply with—laws that protect private employee speech, such as the National Labor Relations Act (“NLRA”), it is also important to understand that these statutes do not act as a blanket prohibition on employers limiting or restricting employee speech in any context. For example, the NLRA prevents employers from restricting employees from engaging in “concerted activity,” which includes discussing work-related issues. As a result, an employer may not ban employees from discussing wages, benefits, or other terms and conditions of their employment with the media, but it may restrict, for example, employee statements not related to employment conditions that could be construed as an official statement on behalf of the company.
Ultimately, this is a fine line to walk. Blanket bans prohibiting all employee communications with the media and policies that route all media communications through a company communications department are impermissible. But more carefully crafted policies focusing on the importance of presenting a single official company message regarding, for example, crisis situations or product information may be permissible. In considering the adoption of such policies, also remember that there are a number of additional federal and state whistleblower laws which likewise limit the ability of an employer to curb or restrict employee communications with government officials. Consequently, employers should be thoughtful when implementing policies that restrict employee speech to the media or otherwise.