The biggest difference in what people can and can’t say at work depends on where they work. Private sector employees are generally not protected compared to their public sector counterparts. In New York, employees are hired “at will” and can be more easily fired. Public sector employees have much more protection thanks to the First Amendment. However, the particular job a person has within the public sector can mean a big difference in what employees can get away with saying.

“The higher up in policy making you are, the more you are the face of the agency, the more the public may perceive you as having some kind of supervising authority in the agency, the more the court is going to look at your speech,” Levine explained. “The general thing you see in many cases is that if you are a low-level employee, you’re not a manager and you don’t work for the police, the Fire Department or the Board of Education, then you can probably say what you want to say.”

When in higher positions of the public sector, Levine explained, the “disruption test” often comes into play — “did the employee’s speech interfere or disrupt their jobs and did the disruption outweigh the First Amendment value of the employee’s speech?” Levine said.

In the private sector, things are a bit different. In most situations, without a union, private sector employees are not protected at all by the First Amendment. However, there is Section 7 of the National Labor Relations Act that guarantees employees to “self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining,” thus providing a bit of protection.

During his portion of the presentation, Fallek pointed out that even private businesses have to be careful not to discourage concerted activity. When it comes to businesses trying to protect their image, they can do four things to prevent “obnoxious language,” according to Fallek. Those are anti-harassment policies, anti-solicitation policies, dress codes and social media policies.

“Because the First Amendment applies to government and not to private employees, it would seem that it would be fairly easy for a private employer to restrict the kind of speech that we’re talking about,” Fallek said. “It would seem like it would be easy to do, but it’s not. At least not anymore. And as lawyers, it’s kind of scary.”

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