Guidelines for employers about limiting political speech at work
Wednesday, September 02, 2020
With the social and civil unrest in our country and November elections looming, everyone seems to have strong opinions about the issues and candidates. Inevitably, these opinions may come up during conversations at work, or in emails or social media posts, where they can become disruptive and interfere with productivity. Such conversations also can expose employers and employees to legal risks if they do not fully understand the laws that govern speech at work.
Many people are surprised to learn that free speech at work isn’t the same as free speech on the street. This article outlines a number of laws that regulate speech at work.
The drafters of the U.S. Constitution viewed the First Amendment as being about the freedom of political speech. By protecting free speech, they intended to support citizen participation in democracy. Many people believe this participation applies to the workplace in terms of wearing a button, engaging co-workers in conversation or distributing an officewide email to garner support for a certain candidate.
Because political campaigning is considered protected speech under the First Amendment, many employers and employees incorrectly assume they can exercise this right at work. But the First Amendment applies only to state action, that is, action taken by federal, state or local governments.
These “protections” do not apply in the private workplace, and it would not violate the U.S. Constitution to terminate an employee for expressing views contrary to those of the employer. However, under certain circumstances such a discharge may violate the National Labor Relations Act and other laws.
State and Federal Employment Discrimination Laws
Employers are prohibited from discrimination, harassment and retaliation under Title VII of the Civil Rights Act, the Americans with Disabilities Act and myriad other federal, state and local laws. Race, national origin, sex, and religion may sometimes be fundamentally intertwined with various political issues, including affirmative action, abortion, prayer in schools and immigration.
Employers and their agents should be careful that their discussions of candidates or issues do not imply directly (or even indirectly) that they will discriminate, harass or retaliate against any employee based on their opinions, which may be related to their status in a protected class.
National Labor Relations Act (NLRA)
The NLRA may not apply directly to political speech in the private workplace, but it does give non-supervisory employees a limited right to engage in free speech and other protected concerted activities for their “mutual aid and protection.” Under this law, employees may usually wear union buttons or insignia at work. They may engage in solicitations at work so long as neither the employee doing the solicitation nor the employee being solicited are engaging in such activities during working hours.
Similarly, employees may engage in the distribution of political materials at work so long as the distribution does not occur in working areas. Allowing candidates to come onto the job site to campaign may undermine an employer’s rights to enforce otherwise lawful limits on employee solicitation or distribution.
Under the NLRA, employees can engage in political campaigning that may be contrary to the interests or positions of their employer. For example, discharging employees for campaigning against repeal of a state’s right-to-work law would be unlawful.
The National Labor Relations Board under the previous administration was very active in applying employees’ right to engage in protected concerted activities to social media such as Facebook and Twitter. Employers need to take care not to violate these employee rights, especially if a Democratic administration returns to power.
State and Municipal Laws
Many states, including California, Colorado, New York, and North Dakota, prohibit adverse action against an employee based on political expression or lawful, off-duty activity. Employers doing business in these states should not discharge an employee for the employee’s speech or conduct outside of the workplace.
Employers can participate in political speech in several ways: allowing free use of facilities for campaigns, sponsoring a candidate, allowing employees to use company time to contribute to a campaign and openly endorsing a candidate. Based on a U.S. Supreme Court decision, a corporation may distribute publications to the general public and spend money in elections independent of a candidate or party.
However, an employer’s right to campaign is limited based on the status of the employees to whom the campaigning is directed. When communicating with executives, stockholders or administrative personnel, a corporation may address any subject, including advocacy and solicitations for candidates and parties. But corporations are prohibited from communicating with employees, salaried foremen and others who supervise hourly employees.
The Bottom Line
While various laws limit employers’ ability to restrict political speech at work, companies also may impose certain restrictions on employees. For example, an employer may limit employee solicitations to non-working time and distributions to non-working areas, as well as ban non-employees from engaging in such activities on a job site. An employer also may impose limits on employee use of corporate computer and email systems or restrict access to certain internet sites through employer-owned electronic systems.
The bottom line is that both employees and employers have rights in this area; check with your legal counsel before adopting overly broad restrictions on employee political activities or taking adverse action against an employee for such activities.
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