Ivo is a partner in Obermayer’s Labor Relations & Employment Law Department. He focuses his practice on representing employers, including advising companies on how to handle employee issues, and defending employee claims...Read More by Author
Political Speech in the Workplace: Navigating a Rocky Political Climate in a Private Workplace
Recent events in Washington D.C. and elsewhere have heightened tensions across the United States and led to renewed questions from employees and employers regarding how to respond to political speech inside (and outside) the workplace. Whether or not employers can—or should—take action in response to employee political speech is a complex question with several moving parts.
1. The Public/Private Employer Distinction
The Supreme Court’s 1968 decision in Pickering v. Bd. of Education,¹ protects public employees who speak out as citizens on matters of public concern. However, because the Constitution only regulates the government’s ability to restrict speech, private employers have more leeway. Rather than focusing on the First Amendment, private employers need to consider the limitations imposed by the National Labor Relations Act of 1935 (“NLRA”) and various state laws.
2. Labor Law Limitations
Section 7 of the NLRA guarantees employees the right “to engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection[.]” As HR Legalist previously explained, where an employee’s political speech is related to advocacy for labor issues (such as the minimum wage, collective bargaining rights, and other issues that the incoming Biden Administration has taken stances on) it could be protected under the NLRA. Employers should be careful not to restrict this type of protected speech.
3. State Statutory Limitations
Some states have enacted laws protecting political expression in the workplace. In California, for example, employers may not retaliate against employees for their political activities or affiliations. Employers with employees in California, therefore, should be careful not to take adverse action against employees because they have expressed their political affiliations either in or outside of the workplace, even if such beliefs are inconsistent with the employer’s views.
In New York, employers are prohibited from discharging or otherwise discriminating against employees because of the employee’s “political activities outside of working hours.” Unlike California employers, New York employers appear to have more flexibility to take adverse action against employees who express their political opinions in the workplace. Thus, a New York employer may be well within its rights to take adverse action against an employee who displays political memorabilia in the workplace, as long as doing so would not run afoul the NLRA or any other law.
In either of these states, employers are still within their rights to take action based on speech advocating violence, or other unlawful conduct, either inside or outside the workplace.
4. Political Workplace Speech Best Practices
While the free exchange of ideas is extremely important, employers also have a responsibility to ensure a safe, respectful, and harassment-free workplace. When speech is disruptive or discriminatory, it likely violates other policies that most employers already have in place, such as workplace violence and anti-harassment policies. Some private employers may wish to implement policies prohibiting abusive or disruptive political speech. Any such policies should be carefully tailored to avoid chilling any protected speech under the NLRA or state law. As always, anti-discrimination and respect in the workplace training are critical steps for employers to reduce the risk of liability.
5. Discrimination Concerns
As the recent discourse regarding racial justice has shown, politics often overlap with legally-protected classifications such as race, gender, and sexual orientation. We can expect this trend to continue into the Biden Administration, which is expected to push for legislation in these areas.
One of the biggest challenges for employers is the consistent application of rules and policies regarding off-duty speech. Nowhere is this issue more fraught than when an employee goes “viral” on social media for off-duty activities connected with candidates or causes, sometimes leading to public pressure to terminate that employee. If an employer decides to terminate an employee for publicly supporting a candidate or movement, that same employer might later face pressure to terminate an employee on the other side of the political spectrum. If the two employees in question are of different races or backgrounds, this could potentially lead to a discrimination claim. Thus, employers should consider whether there are distinguishing factors such as: actual or threatened criminal activity, discriminatory or offensive comments, or other inappropriate posts or comments. Employers should be prepared to defend their decisions based on what each employee actually said or did, not based on their membership in a protected group. In these types of sensitive situations, employers should seek the advice of counsel to ensure that their decisions are defensible.
The information contained in this publication should not be construed as legal or medical advice, is not a substitute for legal counsel or medical consultation, and should not be relied on as such.
¹ 391 U.S. 563 (U.S. 1968).