Protected Workplace Speech: What the NLRA Covers (and What It Doesn’t)

The National Labor Relations Act (NLRA) is one of several federal laws that protects employees’ rights. Specifically, the NLRA protects employees’ rights to engage in “concerted activities” for “mutual aid and protection.” This includes the right to engage in certain forms of speech.

While employees’ speech rights in the private sector are not as broad as many people believe, the NLRA provides important protections that employees can—and should—assert in a wide range of circumstances. When employers violate the NLRA, they can—and should—be held liable for damages and other appropriate remedies.

How the NLRA Protects (and Doesn’t Protect) Speech in the Workplace

The speech-related protections afforded to employees under the NLRA arise out of Section 7 of the statute. Under Section 7 of the NLRA:

“Employees shall have the right 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 or other mutual aid or protection . . . .”

While Section 7 of the NLRA does not address speech directly, the right to engage in “concerted activities” has been construed to necessarily involve both private and public speech (within limits). For example, the National Labor Relations Board (NLRB) lists all of the following as falling within the NLRA’s protections:

• Talking with co-workers about wages, benefits or other working conditions
• Joining with co-workers to speak with your employer about working conditions
• Joining with co-workers to speak with the government or the media about working conditions
• Circulating a petition seeking better working conditions
• Inducing or preparing for group action, even if acting alone at the present time

As the NLRB makes clear, however, “you can lose protection by saying or doing something egregiously offensive or knowingly and maliciously false, or by publicly disparaging your employer’s products or services without relating your complaints to any labor controversy.” Thus, employees who are exercising their rights under Section 7 of the NLRA must be careful to ensure that they are not attempting to cause unwarranted harm, that they are sticking to the truth, and that their speech relates to a matter concerning their employment.

This brings up another important point: Employees in the private sector are not protected by the First Amendment in the workplace. The First Amendment also does not protect private-sector employees from being fired for things they say (or post online) during their personal time. The First Amendment prohibits the federal government from infringing on individuals’ free speech rights (and the Fourteenth Amendment extends this prohibition to state governments). It does not apply to private or publicly traded businesses.

How far do the NLRA’s speech-related protections extend?

Along with protecting speech that is directly related to covered employees’ terms and conditions of employment, the NLRA also protects speech that is indirectly related to these employment-related matters. This includes, but is not limited to, speech that is political in nature. Although neither Pennsylvania nor federal law prohibits discrimination on the basis of political belief or affiliation generally, political speech can fall under the NLRA’s protections when it relates to employees’ protected “concerted activity.”

While some states have enacted laws that prohibit employers from taking adverse action against employees based on their off-duty speech, Pennsylvania law generally allows employers to make employment-related decisions based on their employees’ conduct outside of work. Although there are exceptions, these exceptions are specific to adverse employment actions that are prohibited generally—such as the prohibitions against discrimination, retaliation, and violating the NLRA.

With this in mind, some examples of types of political speech that generally are not protected under the NLRA include:

• Political speech that disrupts workplace productivity (unless this disruption relates to a protected “concerted activity” seeking to address unfair or hazardous working conditions);
• Political speech that creates conflict among employees; and,
• Political speech that is unrelated to any “concerted activity” protected under Section 7 of the NLRA.

The applicability of the NLRA is a complex subject—and it is a subject with which many employers are not as familiar as they should be. As a result, while the NLRA’s protections are limited, violations of the law are not uncommon.

What To Do if You Believe Your Employer Has Violated the NLRA

If you believe that your employer has violated your speech rights under Section 7 of the National Labor Relations Act (NLRA), what should you do? In this scenario, you should:

1. Take Detailed Notes

You should take detailed notes about why you believe your employer may have violated your rights under the NLRA. Write down the names of your co-workers and the other company personnel involved, write down the substance of your speech that you believe was protected, and write down any other details that you think might be relevant to your claim.

2. Collect Relevant Documentation

You should also do your best to collect all relevant documentation. Locate your employer’s policies, make copies of any documents or communications you received related to your speech or your employer’s adverse employment action, and take screenshots of any relevant social media posts.

3. Consult with an Employment Lawyer

Before you take any further action or make any decisions that could impact your employment, you should discuss your situation with an experienced employment lawyer. A lawyer who has experience representing employees in NLRA-related matters will be able to provide a comprehensive assessment of your legal rights; and, if your employer has violated the NLRA, your lawyer will be able to take appropriate legal action on your behalf.

Speak with a Philadelphia Employment Lawyer at Murphy Law Group

Do you need to know more about your speech rights under the NLRA as an employee in Pennsylvania? If so, we invite you to get in touch. To schedule a free consultation with an experienced Philadelphia employment lawyer at Murphy Law Group, call us at 267-273-1054 or tell us how we can reach you online today.