With everything that has happened in the political sphere since the 2016 presidential election and with the 2018 mid-term elections looming, political expression runs hot in America these days. How much can employers control speech in the workplace? The answer varies quite a bit.
Even for employers who are aware that the First Amendment only protects citizens from government restrictions on speech, you need to be aware of other legal protections that shield employees’ political speech.
“The First Amendment’s limited scope, however, should not give employers a false sense of security about actions that they can take in response to political speech in the office,” stresses attorney Luke J. Archer of the law firm of Odin Feldman & Pittleman. “Indeed, there are several legal protections that shield employees from adverse employment actions due to political speech.”
For example, some state and local laws expressly prohibit employers from interfering with political speech-oriented activities of their employees, he points out. These activities may include donating to political causes, signing petitions, running for office, or belonging to a political party.
Some of these protections are far-reaching. For example, Connecticut bars employers from subjecting any employee to discipline or discharge on account of his or her exercise of their First Amendment rights. In Mississippi it is unlawful for an employer to discharge an employee for reporting his employer’s illegal acts. Under this standard, an employee working at a factory who complained of illegal toxic dumping in a letter to a Congressperson would likely be protected.
At the federal level, the National Labor Relations Act protects the ability of non-supervisory employees to engage in concerted activities for the purpose of their mutual aid and protection. As a result, employees collectively advocating for a political candidate on the basis that the candidate, if elected, would be able to better their working conditions could be considered protected speech, Archer notes.
An employee publicly protesting an employer’s perceived pay disparities between men and women in violation of the Equal Pay Act also could be considered a “protected activity.” This also is true in regard to many other laws that protect whistleblower activity, such as reporting regulatory violations by employers. “It is easy to see how such reporting could be shrouded in political language or done for political purposes,” Archer says.
Watch Out for Discrimination
In addition, he warns that many other federal, state and local laws that ban discrimination on the basis of race, sex, disability and age may in some circumstances protect political speech. If an employer historically allowed white employees to advocate for religious rights, they could be in violation if that same tolerance was not later extended to Latino employees advocating for immigrant rights. Also, if the result of work rules relating to speech disproportionally impacts a protected class of employees, an employer may be found to have violated anti-discrimination laws.
Sometimes it is difficult to know where the line is drawn, Archer admits. An employer who disciplines employees for posting political messages on their social media accounts advocating for better working conditions after their shifts ended would likely see a much different result from litigation than an employer who disciplines employees for posting those same messages while on the clock and not on break.
Even the Connecticut law that essentially applies the First Amendment to the office requires that the First Amendment activity “does not substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and the employer.”
Employers also should keep in mind that not all legal restraints that protect political speech in the workplace are codified in statutes or regulations, Archer observes. There are other ways in which employee political speech may be protected as well.
Contracts may place limits on an employer’s ability to restrain employee political speech. For example, not all employees are at-will. Some of them—whether they are under an employment contract, a collective bargaining agreement, or some other agreement—can only be discharged for cause.
“Because engaging in political activities may rarely fit the definition of ‘cause’ under such agreements, these employees may be protected from discharge based on political activity,” Archer says. This also may apply where an employment contract may specifically grant employees certain freedoms to pursue speech-related activity, such as a “carve-out” that allows a full-time employee to engage in freelance writing while employed.
“Employers should not presume that the First Amendment’s inapplicability to private action allows them to take any adverse action against employees due to their political speech,” Archer concludes. “On the other hand, employers should not overestimate these protections either. Instead, each circumstance is different and should be evaluated on its own terms.”