Roseanne, Twitter, And Free Speech For Employees

Roseanne, Twitter, And Free Speech For Employees

All of this has a lot of people wondering: What free speech rights exist in the workplace? Free Speech and Employment There’s rarely a right to job-protected free speech in the workplace. Typically, employment is at-will, and most employers can terminate an employee for any reason, including for things an employee said online or otherwise. The first exception is when an employee has an employment contract, a situation usually limited to key executives and other hard-to-replace individuals (like stars of television shows). Many such contracts restrict the reasons for which the employee can be fired. Next, the National Labor Relations Act protects the rights of employees to act collectively to improve their working conditions. When employee speech isn’t protected under one of these three limited exceptions, there are many justifications employers might have for terminating employees that espouse harmful or offensive views. A New Era of Free Speech in Employment Law? Some generally protect employees participating in “lawful off-duty conduct,” and others more specifically protect endorsement or affiliation with a political party. Going forward, if more jurisdictions enact more speech-protecting legislation, employees’ right to free speech on charged political issues will be interpreted by courts in their respective jurisdictions.

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(Photo by Astrid Stawiarz/Getty Images for SiriusXM)

Ed. note: This week’s column was co-authored by one of the summer associates at my firm, Alex Lilly, a rising 3L at the Emory University School of Law. To be clear, Alex wrote the article, I moved some stuff around, and uploaded it to the website. Thank you, Alex!

A few weeks ago, 90s sitcom star Roseanne Barr seemed to be back and better than ever. When ABC decided to reboot her popular show Roseanne after taking a 20-year hiatus, few expected it to be such a network success in 2018.

The show highlighted Roseanne’s real-life support of President Donald Trump and drew large support for its political incorrectness and social commentary, addressing issues such as unemployment, drug abuse, healthcare, poverty, and other current issues.

Trump even called Barr to congratulate her on the ratings success after its premiere.

Over Memorial Day Weekend, however, things took a turn for the worse. Roseanne, who’s made headlines for her controversial tweets, posted “Muslim brotherhood & planet of the apes had a baby=vj,” with the “vj” referring to former Obama advisor Valerie Jarrett.

Jarrett is African-American and born in Iran. The tweet ignited public outrage. Within hours, ABC president Channing Dungey released a statement cancelling Roseanne and calling Barr’s remarks “abhorrent, repugnant, and inconsistent with our values.”

Some questioned the role of free speech in this scandal and the decision to cancel the show.

Other recent news stories similarly garnered attention and stirred debate about workplace speech. In August, for example, an engineer at Google was terminated after circulating a memo claiming that gender inequality in the tech industry can be attributed to biological differences between men and women.

After the Charlottesville protests, Logan Smith created a Twitter account to identify white nationalist protesters so that the protesters’ employers would be aware of their behavior and potentially fire them.

All of this has a lot of people wondering: What free speech rights exist in the workplace?

Free Speech and Employment

There’s rarely a right to job-protected free speech in the workplace. Typically, employment is at-will, and most employers can terminate an employee for any reason, including for things an employee said online or otherwise. But there are of course a few limited exceptions.

The first exception is when an employee has an employment contract, a situation usually limited to key executives and other hard-to-replace individuals (like stars of television shows). Many such contracts restrict the reasons for which the employee can be fired.

If the employee is fired for any reason other…

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