If you're trying to decide whether a particular employee's speech is protected by the Constitution and whether you can take action, Clemow advises considering the following questions:
- Is the employee expressing views on a matter of legitimate public concern, or is it a purely personal issue or gripe? Personal gripes are definitely not protected.
- Are the specific employee's views expressed in a public forum or in the private workplace on company time? Does the employee's message disrupt your operations or interfere with your business interests, or is it just unpopular?
- Could the employee's message be reasonably construed as whistle-blowing about some employer conduct that's illegal or contrary to public interest? If so, you'd better watch your step.
- If the employee is addressing an internal issue of no public concern, could he or she be seen as speaking for others as well, engaging in "concerted activity" protected by the National Labor Relations Act?
- If your answers to the above questions suggest that the speech in question might be protected, it's a good idea to get professional advice before taking action.
- Shipman & Goodwin LLP, One American Row, Hartford, CT 06103, firstname.lastname@example.org.