Between the 2020 presidential election, country-wide protests and other actions taking place to promote racial equality and justice, and ever-changing policies and regulations that have emerged in response to the COVID-19 pandemic, politics have become a central topic of conversation. Often, these conversations are taking place at work, and employers are grappling with how to minimize the risk of conflicts arising in the workplace due to politically-charged statements or actions.
One of the biggest misconceptions in this area, shared by employers and employees alike, is that the First Amendment of the U.S. Constitution guarantees freedom of speech and, thus, grants employees the unfettered right to talk politics at work. The First Amendment does no such thing. While it does limit the government’s ability to curb speech and association, the First Amendment generally does not apply to private employers, nor does it restrict such employers’ ability to curtail political speech in the workplace. However, other laws exist that could prevent employers from keeping all political discussions out of the office.
The National Labor Relations Act (NLRA)
The most notable law that may protect certain political speech is the National Labor Relations Act (NLRA). This often nebulous area of law can be tricky to navigate. In short, the NLRA protects the right of employees to act collectively with each other for the purpose of improving the terms and conditions of their employment. While this law is commonly associated with unionized workplaces, it applies to all workplaces and prevents both private and government employers from chilling employees’ efforts to discuss their workplace concerns with one another or take collective remedial action.
In some circumstances, this could mean that certain types of political discussions may be within the scope of the NLRA’s protections and cannot be restricted or subject the employee to discipline or other punitive action. For example, it is at least foreseeable that an employee who encourages coworkers to vote for a particular congressional candidate specifically because that candidate promises to raise the minimum wage may claim protection under the NLRA due to the correlation between the candidate promotion and the wages, hours or other terms and conditions of the employee’s employment. Although this speech may be political in nature, it would likely be protected since the employee’s intent is to induce a collective action that could result in more favorable terms of employment. This is not to say, however, that an employee may bring political speech under the protection of the NLRA simply by making general references to a candidate’s actual or perceived views on employment matters. This is a fact-specific analysis and will depend in large part on whether the speech in question stems from a workplace concern held by the employee.
On the other hand, activity or speech that is purely political, without any correlation to employment-related issues, is typically not protected under the NLRA. For example, if an employee hangs a campaign poster in their cubicle that merely states the candidate’s name or discusses political candidates solely in terms of their positions on matters that have no relation to workplace issues, this would be considered activity or speech that is purely political.
State Law Protections – A Legal Patchwork
While no single federal law gives employees a general right to free political expression in private workplaces, a number of states have enacted statutes that extend some protections to employees in this regard. Minnesota is one state that has enacted a statute that prohibits retaliation against an employee based on the employee’s political contributions or activities, unless the political affiliation or viewpoint is a bona fide occupational qualification of the job.
Some states have also enacted laws that restrict employers from attempting to influence or coerce employees with respect to political and/or voting activities. Such laws, a few of which target specific employer actions such as distributing political payroll stuffers or conducting “captive audience” meetings to discuss political issues, have been enacted in a number of states, including Arizona, California, Minnesota, New Jersey, Oregon and Utah, among others. Minnesota’s law, in particular, prohibits an employer from threatening to discharge, discipline, use undue influence or otherwise coerce employees in order to compel them to vote for or against a candidate or ballot measure.
Other examples of state laws in other states protecting employees in the political context include:
- Laws that specifically extend First Amendment rights to private sector employees. This is the case in Connecticut, where employers are prohibited from taking adverse action against employees for exercising rights guaranteed by the First Amendment, provided that the activity does not materially interfere with the employee’s performance of job duties or the working relationship.
- Laws that prohibit adverse actions against employees based on political activities or beliefs. States that have enacted such laws include, for example, Missouri, Nebraska, New Mexico, and South Carolina. Some states, such as California, Colorado, Louisiana and Washington, have taken this prohibition even further by treating political affiliation as a protected characteristic.
- Laws, such as those in Illinois and Michigan, which prohibit employers from maintaining a record of an employee’s political activities, associations and similar non-work activities without the employee’s authorization.
In addition to states, some municipalities have also passed laws that provide similar protections. For instance, and perhaps not surprisingly, Washington, D.C. considers political party affiliation to be a protected characteristic. Because violations of these laws can result in criminal penalties in some jurisdictions, it is important to consult with experienced employment counsel if you are unsure whether such laws exist in the states and/or cities where you do business.
What Employers Can Do
In general, employers are permitted to implement non-discriminatory policies that prohibit employees from engaging in non-work-related activities in the workplace, including purely political activities.
Such policies could restrict, among other things, using work time or resources to solicit others to support purely political causes, displaying posters or wearing clothes that contain purely political messages, or using a company-issued email account to send purely political communications. It is also permissible to prohibit workplace behavior and communications that are aimed at disrupting business operations or productivity, involve violence, threats, discriminatory actions, or create a hostile work environment.
However, as mentioned above, political speech or activities that are sufficiently tied to employment or working conditions could be protected under the NLRA or other applicable laws. Some of the most contentious topics of conversation occurring in workplaces across the country right now (such as racial discrimination, diversity, social distancing, required use of face masks, etc.) may seem political on their face, since they tend to divide people along partisan lines, but employers should review the circumstances of such conversations closely to determine whether the statements may be considered protected political speech.
In order to keep political discussions from disrupting the workplace and undermining productivity, it is important to implement clear, but carefully worded, policies that prohibit political activities unrelated to work while sufficiently carving out any speech or actions that are protected by the NLRA or other applicable laws. These policies must be administered objectively and consistently to all levels of employees throughout the organization. If an employer plans to discipline one employee for violating the policy, it must also be prepared to administer the same level of discipline to high-level managers who engage in similar conduct. It is also important that such disciplinary decisions are business-related and do not create the perception of a disparate impact based on any protected status.
Thoughtfully crafted policies that are enforced objectively can greatly reduce the risk of political activities disrupting business operations or leading to workplace conflicts. If you need assistance in creating these policies or would like your current policies reviewed, FMJ’s HR & Employment team is here to help. Please contact Shannon McDonough at shannon.mcdonough@fmjlaw.com or Natolie Hochhausen at natolie.hochhausen@fmjlaw.com.
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