By D. Albert Brannen
With a presidential election on the horizon, everyone seems to have strong opinions about the candidates and issues.
Inevitably, these opinions will come up during conversations in the workplace. Not only could such conversations disrupt the workplace, but employers and employees could put themselves at legal risk if they don’t fully understand the laws that govern political speech at work.
One recent study showed that 35 percent of employers openly share their political views with employees. Another study showed that 80 percent of employees believe that it would be illegal for their employers to terminate them for engaging in political expression at work.
Many people are surprised to learn that free speech at work isn’t the same as free speech on the street. A number of laws apply to speech in the workplace. This article will briefly outline how some of these laws regulate this subject.
The drafters of the Constitution viewed the freedom of speech clause of the First Amendment as being about the freedom of political speech. The U.S. Supreme Court generally considers freedom of expression to be included in the freedom of speech clause.
Some values served by protecting free speech support citizen participation in democracy, such as participating in a political campaign. Many people believe that this participation can enter the workplace in forms such as wearing a button, engaging co-workers in conversation, or sending out an office-wide email to garner support for a favorite candidate.
Since political campaigning is considered protected speech under the First Amendment, it would seem that employers and employees may exercise this right at work. That is where many employees are wrong.
In fact, the First Amendment applies only to state action – that of federal, state or local governments and some quasi-governmental entities. These “protections” do not apply in the private workplace and it would not violate the Constitution to terminate an employee for expressing views contrary to those of the employer. Such a discharge may violate other laws, however, as explained in the following discussion.
National Labor Relations Act
The National Labor Relations Act, which does cover private employers, may not apply directly to political speech per se in the private workplace. However, 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.”
For example, under this federal labor law, employees may wear union buttons or insignia in the workplace, absent special circumstances. They may engage in solicitations for political causes on their employer’s property so long as neither the employee doing the solicitation and the employee being solicited are not engaging in such activities during working time.
Similarly, employees may engage in distribution of political materials on the employer’s property so long as the distribution does not occur in working areas. Moreover, employers who allow candidates to come on to their property and campaign, may undermine their rights to maintain and enforce otherwise lawful limits on employee solicitation or distribution.
Court rulings and opinions of the General Counsel of the National Labor Relations Board (NLRB) also make it clear that employees can engage in political campaign activities that may be contrary to the interests or positions of their employer. For example, discharging employees for campaigning against immigration reform or for repeal of a state’s right to work law would be unlawful.
The NLRB has also recently been very active in applying the right of employees to engage in protected concerted activities for their mutual aid and protection to social media such as Facebook and Twitter — even when the employees are not working. The NLRB has published three extensive reports in the past year expounding on these rights. Thus, employers should be careful to appreciate and not violate rights of employees who exercise their emerging rights to use such forms of social media.
State and municipal laws
Some states — including California, Colorado, New York, and North Dakota — prohibit adverse action against an employee based on political expression and/or lawful, off-duty activity. If an employer is doing business in a state with such a law, it should not discharge an employee for the employee’s speech or conduct outside of the workplace even of it conflicts with the employer’s culture, values, or policies.
Federal election laws
Employers also need to be aware of issues surrounding political activity by an employer, such as solicitations for political contributions and visits by candidates.
Employers can participate in political speech in several ways: allowing free use of the employer’s facilities for campaigns, sponsoring a candidate, allowing employees to use company time to contribute to a campaign or even openly endorsing a candidate. Thanks to the Supreme Court’s 2010 decision in Citizens United, a corporation may distribute publications to the general public and spend money in elections independent of a candidate or party.
Employer rights to campaign, however, are limited based on the status of the employees to whom the campaigning is directed. When a corporation communicates with its restricted class — executives, stockholders or administrative personnel — it may issue communications on any subject, including express advocacy and solicitations for candidates and parties.
Express advocacy is a communication supporting or opposing a clearly identified federal candidate. However, for those employees who are beyond the restricted class — salaried foremen and other who supervise hourly employees — employers are prohibited from express advocacy.
Other employment discrimination laws may apply
Employers are prohibited from discrimination, harassment and retaliation under Title VII of the Civil Rights Act, the Americans with Disabilities Act, and a myriad of other federal, state and local laws. Among other things, race, national origin, sex and religion may be fundamentally intertwined with various political issues, including among others, affirmative action, abortion, prayer in schools, immigration, etc.
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 somehow related to their status in a protected class.
The preceding discussion demonstrates that various laws limit employers’ ability to restrict employee political speech.
On the bright side, employers may impose certain restrictions on employees. For example, an employer may limit employee solicitations to non-working time and distributions to non-working areas. Employers may also ban non-employees from engaging in such activities on its property. Employers may impose certain limits on employee use of the employer’s computer and e-mail systems and they may restrict access to certain Internet sites through employer-owned electronic systems.
Both employees and employers have rights in this area and employers should check with their legal counsel before adopting overbroad restrictions on employee political activities or taking adverse action against an employee for such activities.