The U.S. Constitution limits the government’s ability to infringe on a range of rights, including the First Amendment right to free speech. In the context of New Jersey employment matters, this usually places far more limits on public employers than private employers. As a general rule, a private employer does not infringe on an employee’s freedom of speech if they discipline or fire that employee because of statements they have made. Since public employers are part of the government, they have less leeway with regard to employee speech. A lawsuit filed earlier this year, however, alleges that a private employer violated the plaintiff’s constitutional rights by firing her because of her speech. Briskman v. Akima, LLC, No. 2018-5335, complaint (Va. Cir. Ct., Fairfax Cty., Apr. 4, 2018). The plaintiff claims that the defendant fired her “out of fear of unlawful retaliation by the government for constitutionally protected speech,” id. at 8, and that this makes her termination a violation of her First Amendment rights.
Caselaw has largely established broad protections for the free speech rights of public employees with regard to their employment. According to the U.S. Supreme Court, a public employee who speaks out about “issues of public importance” cannot be subject to termination by their employer, unless their statements were “knowingly or recklessly” false. Pickering v. Board of Education, 391 U.S. 563, 574 (1968). This does not apply, however, when the employee is speaking in their official capacity as a government employee. Garcetti v. Ceballos, 547 U.S. 410 (2006).
Private employers have fewer restrictions with regard to disciplining employees, including terminating them, for statements they have made. This often applies even when the statement or statements at issue involved matters of public concern that were unrelated to the employee’s position with the employer. Some exceptions apply, such as when the speech involves activities protected by the National Labor Relations Act, 29 U.S.C. § 157, or when a state or local anti-discrimination law includes protections for “political activities,” N.Y. Lab. L. § 201-D. The Third Circuit Court of Appeals has ruled that termination for an employee’s political activities, or their refusal to participate in political activities, could violate public policy. Novosel v. Nationwide Ins. Co., 721 F. 2d 894 (3rd Cir. 1983).