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1st Amendment and Free Speech/communication outside the workplace

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Question
I inadvertently sent a text that was intended for my sister in another state to the one of my direct reports. The involved employee had texted me that she would not be able to come to work the next day due to a small family emergency. In the text that was intended to my sister I expressed my frustration with the pending absenteeism as it would require me to now cover her shift thus preventing me from performing my duties and attending important meetings. Unfortunately I did not stop there. I identified the employee by her fist name by stating "employees name" likes to party hardy on the weekends and had a new boyfriend who she had moved in despite the impact it would have to her teenage daughter who had recently experienced some abuse from an outside male.I did not identify the involved child by any means. The employee brought the text to the HR department and I have received a formal disciplinary action in the form of a Management Letter of Concern which is placed in my permanent file and results in my inability to transfer to another department and affects the amount of my raise which are expected to take effect in December. I have looked through my employee handbook and do not see any reference to the organizations right to discipline employees for actions outside the workplace. I do not see anything that excludes that right either but would it not have to be specifically spelled out to allow for that action.I did not comment on the employees performance or history at work. the comments were not intended for the employee nor were they formulated in a manner which would indicate that the message was intended for her. I did not send this to anyone within the organization and my sister has no connection with any employees of our organization. whatsoever. Is the organization within their rights to formally discipline me in this case? The organization has very clear policies regarding privacy and respect and values standards but again this incident was intended to be a private conversation with my sister.

Answer
Sorry to hear about your difficulties.  Different States have different rules regarding how an employer could punish certain communications.  For a thorough analysis, you would need to discuss the matter with an attorney in your State who has employment law experience.  But even States that have protective laws are generally rather deferential to employer actions such as this.

From a First Amendment perspective, there is no limit on what a private employer may do.  The First Amendment on affects government restrictions on speech.  Even if your employer is part of the government, courts have generally held that speech involving matters of employment that do not involve matters of public concern do not receive First Amendment protection.  

1st Amendment and Free Speech

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Michael Troy

Expertise

I will answer general questions regarding freedom of speech, petition, or religion. My specialty is in cases involving public employment or education, as well as issues related to campaign finance. I can`t give specific legal advice involving specific cases you might have.

Experience

As an attorney for the Center for Individual Rights, I worked on a number of free speech cases, including Rosenberger v. Univ. of Virginia, in which the Supreme Court upheld my clients' right to run a student newspaper without discrimination because of its religious content. I also worked on White v. Julian, which protected the right of people to protest against a homeless shelter in their neighborhood.

I also worked for the Federal Election Commission on several cases regarding the right to participate in the election process and engage in campaign related speech.

Organizations
Former Attorney for Center for Individual Rights.

Publications
Washington Post
Washington Times

Education/Credentials
J.D. from Univ. of Michigan Law School

Awards and Honors
Truman Scholar

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