Although rare, from time to time an employer may sue a current or former employee who makes negative public comments about the employer. In such cases, the employer may allege that the employee’s comments constitute defamation or tortiously interfered with the employer’s business relationships.
Not surprisingly, the threat of litigation can have a substantial deterrent effect, not only upon the employee threatened with litigation but on their colleagues as well. As a result, employees may choose not to speak publicly, even with respect to matters of public concern.
To offset this effect, many states and the District of Columbia have enacted some version of the Uniform Public Expression Protection Act (UPEPA), or state Anti-SLAPP (Strategic Lawsuit Against Public Participation) laws. On March 24, 2026, Michigan will become the 39th state to enact an Anti-SLAPP law to protect and provide remedies to individuals who are sued for exercising their First Amendment rights to free speech and expression on matters of public concern.
In states like Michigan with Anti-SLAPP laws, employees can file a motion to dismiss the litigation before the expensive and time-consuming process begins. If successful, the employee may recover their attorneys’ fees and court costs from the employer that filed the legally meritless action, not only making the aggrieved employee whole but deterring employers from filing similar lawsuits against employees in the future.
Anti-SLAPP laws vary across jurisdictions. There is no federal Anti-SLAPP law in place, and proposed Anti-SLAPP legislation remains idle in the House of Representatives. At the state level, Anti-SLAPP laws range from very strict, such as in Texas, California and New York, where employers must establish they have a substantial basis in fact and law before filing a lawsuit targeting employees’ protected speech or public petition and participation, to more lax, such as in Massachusetts, where Anti-SLAPP motions are limited to cases involving petitioning the government.
The addition of Michigan to the roster of states enacting Anti-SLAPP laws is a reminder to employers to review state-specific limitations on suits against employees, to exercise judicious restraint before taking punitive action against employees for critical speech and to consult with counsel to ensure that litigation against current and former employees is grounded on solid legal principles and not merely retaliatory animus to avoid substantial judgments.
