Free Speech at Work? Maybe You Should Exercise Your Right to Remain Silent

Frances Codd Slusarz, an attorney based in Stamford, Connecticut, will be blogging for us about the complications, confusions, and, yes, legal issues that can arise in the workplace.

The confessional parting shots that Greg Smith and James Whittaker aimed last month at their former employers (Goldman Sachs and Google, respectively) might have made you itchy to share your own workplace gripes with the whole interwebs (or at least your Facebook friends). You’re a brave soul and a leader, just like them, and how else will you change what is wrong? How else is everyone going to know that you are mad as hell and not going to take it anymore?

Let me make a suggestion: keep your mouth shut.

Most of us can’t afford to alienate the industry in which we work. Even if your observations are keen and justified, airing your employer’s dirty laundry calls into question your judgment and loyalty. And your potential employers do not want to be the next ones in your crosshairs.

But I’m a lawyer, not a career coach, so let me scare you with this: if you haven’t already left the toxic hellhole, you will be fired. Even if you have already left, you may be sued. (That said, if you are making a good-faith report of illegal, unlawful, or unethical activity, whistleblower statutes come into play and the scary stuff may not apply to you. Talk to a lawyer; that’s what we’re for.)

The First Amendment does not give you the right to bad-mouth your employer without consequence. The vast majority of us are employed “at will,” and our employers can fire us at any time, for any reason, or no reason. By the same token, at-will employees can leave the toxic hellhole at any time, with or without notice. The law does not guarantee you employment with a well-run company, with smart managers, where people are rewarded fairly for their contributions to the team’s success. But if you don’t like it, you can work somewhere else.

Those of us with employment contracts have different issues. If you have a contract for employment for a definite period of time, you can still leave on a whim (thanks to the Thirteenth Amendment), but you may be liable for any damage the company suffers as a result of your early departure. Your employer, however, can only terminate the contract — end your employment early — for the reasons written in the contract.

That said, I’m willing to bet that even if bad-mouthing the company isn’t explicitly listed as just cause for termination, the company will not keep you around or buy out your contract. And good luck trying to convince a court that you should be paid after you’ve exposed the toxic hellhole.

As for the potential lawsuits against you, breach of contract is just the beginning. Let’s say, for example, that your exposé includes facts that were exaggerated, rumors, or information about internal processes. From that alone, your former employer or — worst still, depending on your former job — the shareholders of your former employer can sue you for libel, breach of confidentiality, and breach of loyalty. You don’t want this heat.

The legal issues are much more nuanced in real life, but here’s the point: as satisfying as it may be to stick it to the man, you have to take the long view. It isn’t easy. It is natural to want to strike out at an institution that has made you miserable, and it sucks to have to put on your happy face. It really sucks. But it’s probably the best choice.

Shoe shopping helps.

The information, comments, and links provided do not constitute legal advice. No attorney-client relationship has been, or will be, formed by any communication(s) to, from, or with the blogger.

[Photos: Bigstock]

About this Gun

Fran Slusarz

Fran Slusarz

is an experienced employment lawyer and small business counselor. Follow @FranSlusarz.