Disciplining Employees for Free Speech, Whistle Blowing, and Political Activities

Abstract

The first part of this article reviews literature and case law on disciplining employees for free speech, whistle blowing, and political activities. It focuses on the extent to which an employer regulates off-the-job behaviors of its employees. Although this is not a treatise on the underlying law, the authors discuss constitutional law (especially the First Amendment), limitations on at-will employment, the Whistle Blowers Protection Act, and some state laws and the potential impact of these on the employer’s behavior. The second section reviews and analyzes the results of litigation over an eleven-year period to determine the win/lose rates in the relevant courtroom battles and whether those rates have changed with an increasingly protective public policy.