Are Corporate Employees Protected by the First Amendment?

By Amanda G. Ciccatelli
August 24, 2017

In this day in age, if an employee has something to say, they should be able to say it, right? Not exactly. One Google employee recently learned the hard way when he was fired after writing and circulating a memo where he criticized the company’s diversity efforts.

When the memo went public on August 5th, women and under-represented groups in tech criticized it and Google denounced it. But, after Google fired the engineer claiming he’d violated the company’s code of conduct, things changed. Some people appalled that someone could lose his job for expressing dissent, while some took to Twitter discussing the topic of free speech.

However, the First Amendment only protects the public’s right to free speech from government censorship, and not corporate censorship. One of the reasons that a private employer can censor speech is because the First Amendment does not cover private entities as it is limited only to government – federal, state and local.

Veronica Nannis, a partner with Joseph Greenwald & Laake focusing on qui tam litigation and whistleblower rights, sat down with IPWatchdog to discuss the question controversial topic of free speech in the workplace.

“Private employers are typically allowed to censor speech that occurs on the job. The First Amendment does not cover them,” she explained. “They are also allowed to censor speech or activity that discriminates against, creates a hostile work environment or harasses another employee. In that regard, and as with all our rights, our right to free speech generally ends where another person’s rights begin.”

An employee’s off-the-clock, private, political or religious activities are protected by both federal and state discrimination laws, but once political speech enters the work place, a private employer may legally discipline or fire an employee for such proselytizing in many cases, per Nannis. The gray areas in between are times when you need to seek consultation with an employment attorney in your state.

As it related to the Google incident, it was first reported that a memo authored by a Google employee, titled “Google’s Ideological Echo Chamber”, was being circulated among Google employees. Later that day, the memo was obtained by the media and made public. The memo’s author was identified in the press as a senior employee named James Damore. In the memo, Damore criticized the efforts of tech companies, Google included, to employ programs and hiring practices concentrating on diversity. Specifically, Damore was critical of tech company initiatives which had the goal of recruiting and employing female engineers.

“The crux of Damore’s critique was that the reason for the low number of women in the tech industry was not something that could be countered by policies promoting diversity through recruitment, education, or anti-discrimination measures,” explained Nannis. “Rather the reason there are so few women in the tech field is due to biological differences, including ‘higher agreeableness’ and more ‘neuroticism,’ that leave women less well-equipped to perform the work that tech jobs demand.

The media coverage sparked debate, some outrage, and a focus on Google’s culture, among other things. After days of the media firestorm, Google had terminated Damore’s employment. Google’s CEO, Sundar Pichai, stated, in an email published by the Washington Post, that although Google strongly supported the rights of its employees to express themselves and debate issues like those discussed in Damore’s memo, “To suggest a group of our colleagues have traits that make them less biologically suited to that work is offensive and not OK. It is contrary to our basic values and our Code of Conduct.” Pichai reiterated that point by stating that “portions of the memo violate our Code of Conduct and cross the line by advancing harmful gender stereotypes in our workplace.” For his part, Damore stated, as reported in the Financial Times, that he is “currently exploring all possible legal remedies.” Damore also stated that prior to his employment being terminated, he had filed a complaint with the National Labor Relations Board and that it’s illegal to retaliate against a NLRB charge.

According to Nannis, while whistleblowers are protected under various state and federal laws and retaliation laws can protect employees who file complaints or grievances, Google explained that the company could not have retaliated against Damore, because it was unaware of his NLRB complaint until news of the same was reported in the media after his dismissal.

“Anti-retaliation laws generally require the employer to have known about the complaint and to have fired the employee, at least in part, due to it,” she said.

So, how can employees protect themselves from incidents like Google’s in the future?

“Know your rights, be sensitive to others’ rights and know your employer’s rights too. Many states, including Maryland where I practice and California where Google is located, are at-will employment states,” she explained. “An at-will state means that, absent a contract, certain union protection, legal prohibition or public policy, an employer can demote or fire an employee for any reason, or no reason at all. If you live in an at-will state, your private employer does not need a reason to fire you. So, while an employee can speak at will, a private employer can fire at will as well.”

In addition, Nannis advises to look to see if there are any state laws protecting private employer censorship of speech for non-work related activities. California is one of a handful of states, including Colorado, New York and North Dakota, where there are laws protecting limited out-of-work speech.

She added, “If the Google employee had given an off-the-clock speech about his political views as may relate to IT and he had not mentioned Google by name, he would have had a stronger defense under California law, and Google might have had a harder time firing him for out-of-work activities. However, without the protection of one of these exceptions, an employee in an at-will state risks firing when he or she speaks out in a way that displeases their private employer.”

The Author

Amanda G. Ciccatelli

Amanda G. Ciccatelli s a Freelance Journalist for IPWatchdog, where she covers intellectual property. She earned a B.A. in Communications and Journalism from Central Connecticut State University in 2010. Amanda is also currently Head of Content Marketing, Social Media & Digital Products at Informa, a leading global business intelligence, academic publishing, knowledge and events business. Follow her at @AmandaCicc.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 6 Comments comments.

  1. Ken August 24, 2017 8:54 am

    “speech or activity that discriminates against…”

    Um…this seems to blur a very important line between “speech” and “activity.” As liberals used to say, the solution to “wrong speech” is counter-argument persuasion, not suppression.

  2. Anon2 August 24, 2017 10:49 am

    No private actor can abrogate the right to free speech. People can say what they want and no one can use force (not lawfully) to prevent them from saying it.

    Employers cannot censor their employees, they cannot incarcerate them or otherwise threaten them with physical force, they can only fire them which leaves their rights fully intact.

  3. Tesia Thomas August 24, 2017 12:46 pm

    I’m just flabbergasted that diversity in Google makes the news but NOT Google USPTO Corruption.

    What a world we live in today.
    Some guy in the US (out of hundreds of millions of all the regular guys in the US) is potentially, arguably sexist and that makes the news above political corruption.

  4. Tesia Thomas August 24, 2017 1:42 pm

    Everyone can say what they want about free speech.
    If you don’t want people talking about free speech of private information then don’t publish it.
    James Damore did not run Google. He was a cog. He had no public standing and was not a public figure.
    His words should have never been picked up by the media.

    Damore should go after whoever gave the memo to the publisher and whoever published the memo with a copyright suit.

    When private information becomes public information then we CAN start talking about free speech because that’s when Google leaders heard about it!
    They didn’t know until after publication. So Damore should take all of them to court and say, “Look, you published private information which led to my firing.”

    Damore can argue Google cared more about the negative publicity. And, he can argue that the NLRB complaint was directly of what was in his memo.
    He complained in the memo. Google found out.
    It’s like when an employee (in my field) complains about hazardous working conditions (chemical hoods don’t work well, chemicals everywhere) even in a memo shared with everyone else. The employer infers, “Crap we might see OSHA trouble.” And then fires the employee.
    Same thing IMO.
    Damore complained and if his NLRB complaint is about the same thing then he could stand a chance.

    Employers don’t have to be notified of the exact filed charge. They just have to know that an employee is complaining.

    Still…
    How are one man’s opinions newsworthy?
    I think he could go after publication of private info and that retaliation claim. Google is already in ‘hot water’ over diversity stuff and likely didn’t want more negative press about it.

    Funny how the memo circulated among Googlers but it was only until after publication that he was fired. I’m sure the Googlers notified included someone who could reasonably tattletale and did.
    Who’d go to the media before a superior?

  5. Confused Pharmacist August 29, 2017 6:55 am

    I find the contradictory nature of the Left to be insufferable sometimes. They will defend Google using the “private corporation can do whatever it wants” but then will freak out when ISPs like Comcast attempt to block certain communication protocols and throttle traffic (we must support Net Neutrality from these evil corporations!). Contradictions everywhere… on many sides… on many sides.

  6. Confused Pharmacist August 29, 2017 6:59 am

    Of course the Right has its own share of contradictory positions as well: states’ rights, except of course when a state tries to legalize marijuana at which point they freak out. Smaller government! Except when you want to decrease the biggest portion of government spending, the military, they freak out. The government should stay out of people’s personal lives! Except of course when it comes to a woman’s right to choose or a person’s sexual preferences, at which point they want the government to come down like a hammer on what they perceive as “degenerates.” Contradictions everywhere… on many sides… on many sides.