Winter 2025-26 Newsletter

Contents

Letter from the editor

a refresher on employee speech

New Trends for A New Year: An Employment Law Forecast for 2026 

employment & Labor law section news

Letter From the Editor

It’s a pleasure to welcome you to this issue of the South Carolina Bar Employment and Labor Law Section Newsletter. Our section continues to be a place of thoughtful analysis and practical guidance — we hope you never look at our resources and think, “this is not enough.”   

This issue contains an exploration of employee speech in the workplace — a problem that I do not think will ever go away. This is an area where the answers are rarely clean, the stakes can feel personal, and even seasoned practitioners may find themselves responding, "yes, I think so, probably," as they work through facts, motivations, and competing obligations. We also include a 2026 employment law preview, not as a prediction exercise, but as an opportunity to pause, take stock, and prepare thoughtfully for what lies ahead. 

You’ll also find highlights from recent section events, which continue to remind me why this community matters. These gatherings are about more than programming; they’re about showing up for one another, engaging honestly, and staying connected even when we’re advocating from opposite sides. We all deserve the sunshine that our section provides.   

Looking ahead, I hope you’ll join us at the upcoming Spring CLE. It’s a chance to reconnect, to learn, and to step briefly out of the day-to-day demands of practice. While, we can’t guarantee that it will be like going to the cottage, the networking and educational content are always top tier.   

Finally, I warmly invite anyone interested in contributing as an author to reach out. This newsletter is strongest when it reflects a wide range of voices and experiences, and I hope it remains a space where thoughtful, respectful dialogue continues to grow.  

So, crack open a ginger ale, or a coke, and enjoy reading this issue.   

Thank you for reading, and for being part of this section. 

A Refresher on Employee Speech

The concept of “free speech” and the Constitutionally protected right are fraught with misunderstanding. And, rightly so, people are very protective of their free speech rights and are quick to passionately advise you of what they believe the extent of those rights to be.  This is especially true in the work environment, where employees often seek to test the limits of how “free” their speech actually is.  And, for many employers, there is often a question around how to employer reconcile free speech rights and internal company policies. 

Sometimes, employers assume they have broad authority to address comments made outside working hours or on social media. Conversely, employees usually presume that comments made, or statuses posted on their social media accounts are protected speech because they are not at work. In reality, both the employees and employers usually are wrong depending on the specific facts.

Recent South Carolina and Fourth Circuit cases emphasize that successful workplace speech protection claims must be based on clear statutory or doctrinal grounds. This underscores the importance of understanding the practical mechanics of speech-related employment issues when advising on or litigating the same.

Workplace speech like other speech is governed by the First Amendment to the U.S. Constitution which reads:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

While we are free to speak, the Constitution does not entitle employees to unrestricted free speech in the workplace. In other words, employees are free to articulate their views; but may be forced to own the consequences their actions.

Private Employers and The Myth of Political Speech Protection

 For private employers, free speech arguments must be tied to a statute or a narrow public policy exception. Some statues or regulations that may give rise to these types of claims are the National Labor Relations Act (“NLRA”), whistleblower laws, and certain discrimination statutes. In recent years, employees seeking recourse for exercising political speech have relied on S.C. Code §16-17-560 which criminalizes the termination of an individual’s employment because of his or her political opinions.[1]

These types of speech-based claims have arisen in situations where employees have made posts about political opinions or current events such as Black Lives Matter or the Confederate flag. A typical example would involve an employee reporting to work wearing an article of clothing demonstrating support for Black Lives Matter or making a social media post supporting the return of the Confederate flag to the State House Dome. In one case involving an employee making social media posts criticizing Black Lives Matter and mentioning ammunition, a South Carolina court determined that the employee’s post was not a political opinion under S.C. Code §16-17-560. Because the employee was engaged in general political commentary and not participating in a core political activity, the claim failed, and the case was dismissed. 

This same rigidity appears when employees attempt to repackage workplace disagreements as whistleblowing. In Millhouse v. Jamco America, Inc.[2], the plaintiff refused to perform aircraft repair work that he believed could be unsafe and expose him to criminal liability. The employee reported the allegedly unsafe task and was terminated for not performing his duties. The employee subsequently sought recourse as a violation of public policy for engaging in protected speech based on certain state aviation safety statutes. The court dismissed his claims because the statutes relied upon by the employee, unlike the state whistleblower statute, did not specifically protect his speech. Thus, the private employer was absolved from liability.

The agency that administers the NLRA, the National Labor Relations Board (“NLRB”), has reached a similar conclusion. In Triple Play Sports Bar & Grille[3], two employees were terminated after criticizing their employer’s tax withholding on Facebook; one “liked” a post and another added a negative comment. The NLRB concluded, and the Second Circuit upheld, that their actions were concerted activity about working conditions and remained protected despite profanity. General Motors[4] attempted to create a clearer standard by applying a burden-shifting framework to cases involving abusive conduct but in 2023, Lion Elastomers II[5] overruled General Motors, returning to the older case-by-case standards that are more protective of harsh or intemperate outbursts in the course of protected activity, making discipline riskier. Lion Elastomers II was vacated in the Fifth Circuit in 2024 but the NLRB continues to apply the standards in all other jurisdictions.[6]

The key takeaway is that unless a statute clearly protects employee speech for a private employer, courts will not expand Constitutional protections. Content about pay, schedules, safety, or policies with coworker engagement is often protected.

Public Employers and The Illusion of Broad First Amendment Rights

For public employees, the First Amendment provides limited protection from retaliation for exercising certain First Amendment rights. U.S. Supreme Court cases Pickering v. Board of Education[7], Connick v. Myers[8], and Garcetti v. Ceballos[9] provide the analysis for free speech rights related to public employees. In Connick, the Court reasoned that "the interests of the employee as a citizen, in commenting on matters of public concern" must be balanced against "the interest of the State as an employer, in promoting the efficiency of the public services it performs through its employees."[10] In Garcetti, the Court held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”[11]  In so holding, the Court clarified that although public employees do not surrender all their First Amendment rights by reason of their employment, the First Amendment only protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.[12] 

Therefore, when analyzing these issues, Pickering/Connick/Garcetti can be viewed collectively as instructional in providing a four-step test:

Step 1: Was the speech made pursuant to the employee’s official job duties?

Step 2: Was the speech on a matter of public concern?

Step 3: Does employee’s speech interest outweigh the government’s interest in workplace efficiency, public trust, and safety?

Step 4: Was the speech a substantial or motivating factor in discipline (“but-for” causation)?

In Gillespie v. Spartanburg County School District Five,[13] timing was the distinguishing factor. The employee posted pro-Trump and pro second amendment content on social media. Nineteen months later, based on irregularities discovered during a procurement investigation, the employee was placed on leave and then subsequently reassigned. The court held that the employee’s speculation about hidden political motives could not overcome documented non-political reasons for the reassignment and further, that causation could not be established by such attenuated temporal proximity to the alleged adverse employment action.

Polarizing political events can lead employees to post or share politically charged materials. Recent decisions from the Fourth Circuit reinforce application of the Pickering/Connick/Garcetti framework. In Porter v. Board of Trustees of NC State University,[14] although a professor’s blog post criticizing academic culture was deemed protected speech, the claim failed because of the attenuated temporal proximity to the alleged retaliation. Further, the complaint itself failed to allege the blog post was the “but for” cause of the alleged adverse employment action.

Remember, the First Amendment does provide protections, but courts often prioritize public employer needs, such as safety, discipline, and integrity.

Social Media 

Social media does not create a new category of free speech protection and courts generally treat it as ordinary speech analyzed under existing statutes. In Bagley v. City of Columbia[15], a retaliation suit filed in response to a fire captain's termination over an Instagram post about police violence and race did not survive the City's motion for summary judgment. Although the post was made by the employee in his capacity as a private citizen on a matter of public concern, the Court held that the City did not need to prove actual harm and emphasized the fire department’s paramilitary structure, the need for discipline and public trust, and the reasonable fear of disruption as sufficient justification for the government’s restriction of the employee’s speech when analyzed under Pickering.

Key Points and Conclusion

Given the current political climate, these claims only are likely to increase. While South Carolina courts demand clear legal grounds to protect workplace speech, future elections and generational change in the working population could yield interesting opinions that could break away from the past norms. Should you find yourself involved in a workplace speech issue, remember that the rules of the game are different depending on if the employer is public versus private. Once that distinction is clarified, it is important for practitioners to perform the appropriate fact-based analysis on the speech in question to determine if there are any statutory or other lawful protections. Always remember, “free speech” protections at work are limited and context-dependent so ensure that you habitually walk through your analysis step by step before rendering guidance.

New Trends for A New Year: An Employment Law Forecast for 2026

Employment & Labor Law Section News

Employment & Labor Law Specialization

Applications to sit for the Employment & Labor Law specialization exam must be submitted to the Commission on CLE & Specialization no later than May 31, 2026. Find more information here:

More Information

Upcoming Events

Midyear CLE  |  May 15 (Columbia)

Post-Midyear Networking  |  May 15 (Tin Roof, Columbia)

42nd Annual NC/SC ELL Conference  |  November 6-7 (Renaissance Hotel, Asheville, NC)

USC Law Employment Law Society Mixer  |  November 12 (The Hangar, Columbia)

SC Bar Convention 2027  |  January 21-24, 2027 (Greenville)

42nd NC/SC Replay 2027  |  February 2-3, 2027 (Multiple Locations)

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