Turbulence Ahead: Navigating Political Speech in the Workplace during an Election Year and Global Pandemic – JD Supra

Seyfarth Synopsis: In a tumultuous year full of social unrest, a pandemic, and a Presidential election, it is no wonder employers find themselves grappling with howand whetherto regulate politics in the workplace. Options for employers differ dramatically depending on context and location and whether an employer seeks to regulate behavior in the workplace or off-duty conduct, such as posting on social media.

With less than four weeks to go until election day, political speech in the workplace is at a high-water mark, and employers nationwide are grappling with employees seeking to wear masks and other clothing in support of a candidate, a social issue, or a political message and engaging in political activity off-duty, including posts on social media and attending protests or political rallies. In many cases the speech or activity at issue does not implicate working conditions directly but it nevertheless causes distractions in the workplace, such as disagreements among coworkers or offended customers. Depending on the messaging at issue, political speech by employees may also impact an employers business or brand.

These are some of the reasons employers might consider instituting limitations on political speech in the workplace. Such limitations are often lawful, but it depends on the context--specifically, whether an employer is public or private, where the employer is located, whether an employee is at-will or has an employment agreement, and whether the speech at issue relates to working conditions. As discussed below, because of state and federal constitutional provisions, a public employers ability to restrict political speech by employees is generally less than that of a private-sector employer.

Even so, private-sector employers are constrained by federal and state laws when it comes to regulating employee speech, including political speech.

The National Labor Relations Act

Section 7 of the NLRA gives employees the right to unionize, to join together to advance employee interests, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. Section 8(a)(1) makes it an unfair labor practice for an employer to interfere with Section 7 rights. In many instances, it can be difficult to determine whether a type of speech or activity is purely political in nature or whether it touches on working conditions, such that it might be activity or speech protected by Section 7.

For example, if employees distribute literature in support of a political candidate at work but tie their support to a work-related issue, i.e., this candidate will improve our healthcare or vote for candidate because he will pass laws to raise our wages, the speech would arguably be protected by Section 7, even if it is political in nature. Conversely, an employee wearing a Vote for Smith button--with no connection to the workplace--would not be protected by Section 7. In Eastex v. NLRB, 437 U.S. 556 (1976), a group of employees requested permission from the employer to distribute a newsletter urging employees to support a union. The newsletter also encouraged employees to lobby legislators in opposition to the states right-to-work statute and the Presidents planned veto of an increase in the minimum wage. The employer denied the request, stating that the political items had nothing to do with the employers relationship with the union. The Supreme Court rejected the employers reasoning, instead holding that employees do not lose Section 7 protection simply because they seek to improve terms and conditions of employment or otherwise improve their lot as employees through channels outside the immediate employee-employer relationship. Id. at 565.

Where permitted by state law, private-sector employers can often regulate political speech in the workplace by enforcing their existing policies on items such as solicitation and distribution of literature, uniforms, dress code, and policies against violence, threats, intimidation, discrimination, and harassment, including EEO policies. For example, while the NLRA would restrict an employer from banning union buttons or insignia, an employer can implement dress code policies prohibiting the display of purely political buttons and logos in the workplace without running afoul of the NLRA.

Other federal laws

Similar to the NLRA analysis, activity or speech that is purely political in nature is unlikely to be protected under other federal statutes such as Title VII of the Civil Rights Act. But political speech that constitutes animus towards other coworkers in a protected class or that creates a hostile work environment may require an employer to intervene to avoid liability under those statutes.

But What About the First Amendment?

One issue that often gets raised initially by employees is the First Amendment. This can be somewhat confusing because many are taught about freedom of speech in school--specifically in the context of political movements and activities. Of course, this is a misunderstanding in the context of private employment. The First Amendment protects against government activity, not activity in the private sector. Thus, government employees do have a right against retaliation for expressing their views, including political views, under the First Amendment, and public-sector employers will have to engage in a balancing test before restricting employee speech on matters of public concern. But this does not extend to private sector employees, unless another state or local law extends it to them.

A Complex Web of State and Local Laws

As soon as employee political activity issues arise, one of the first things that an employer should consider is where, geographically, the issue is arising. This is because the employers ability to regulate the conduct largely depends on the jurisdiction in which the employee political activity takes place. Some states (and localities) have no laws regulating this topic. Others have laws that moderately regulate an employers ability to regulate political activity. Still, others have broad protections for both on-duty and off-duty conduct. While we will not discuss every states and localitys laws, we will discuss some common types of laws and provide a few examples.

For example, some states (like Maine) have no laws regulating employer involvement in limiting employee political activities in the workplace. Employers in states like this have less to consider when it comes to placing limits on employee political activity. Similarly, other states (like Georgia) only ban threats to personal safety. The situations where this type of law places an actual limit on an employers ability to regulate employee political activity would seem to be exceedingly rare given the severe type of conduct required to trigger it.

Another group of states (for example, Wyoming, Virginia, Vermont, New Hampshire, Kansas, and Oklahoma) and even the federal government for particular elections have general bans on voter intimidation and coercion. These laws would presumably encompass employer behavior. Other states have more tangible protections directed specifically at employers, but may be limited to traditional notions of political activity, such as influencing voting in various ways. For example, several states prohibit employers from taking or threatening to take adverse employment action against employees, such as terminations, layoffs, or pay reductions, based on the result of an election or how an employee votes. Examples of states with laws along these lines are Florida, Delaware, Arizona, and Alabama.

Other states go further and protect employees from adverse actions based on the employees engaging in broader political activities or lawful off-duty conduct. For example, Connecticut actually extends First Amendment protections to private sector employees. California prohibits employers from making rules or policies that tend to control or direct political activities, and likewise prohibits employers from threatening discharge to influence political activity. California also prevents employers from taking adverse action against employees based on lawful off-duty conduct. New York and North Dakota have similar protections for lawful off-duty conduct. That said, these protections are not unlimited. In general, employers may limit the activity if necessary to further a legitimate business interest or if the limit is unrelated to the political activity itself.

As can be seen, there is a wide spectrum of laws in this area. So, one of the first things an employer needs to consider is geography. The location of the employee typically will determine the amount of employer limitation permissible. The next thing to consider is the type of employee conduct at issue. Is it as simple as voting? Or, does it involve more general political activity of employees (promoting candidates or social causes)? The latter involves the more difficult scenario. We discuss a few examples below in both the off-duty context and in the workplace.

Off-duty political speech

Off-duty political speech can also impact employers, particularly on social media. As discussed above, depending on the speech at issue, political posts by employees can create rifts among coworkers or somehow imply the endorsement of the employer, upsetting customers or attracting unwanted media attention. As with on-duty conduct, an employers best avenue to resolve issues is by enforcing its existing policies. While we would not advise that an employer go so far as to ban an employee from engaging in any off-duty political conduct, employers in most cases can protect their legitimate business interests and enforce existing policies applicable to social media use, including EEO policies and policies prohibiting harassment, threats of violence, and bullying.

Example 1: Employee posts an article on Facebook discussing the Me Too movement and says Weve seen enough. Time to stand up for our female coworkers in the workplace. Such a post implicates working conditions and is likely protected by the NLRA. Additionally, the off-duty nature of this activity would render it protected under many state laws.

Example 2: Employee retweets a tweet from a well-known white supremacist containing racial slurs. Such conduct would violate many of the employers policies, including anti-harassment and anti-discrimination policies. Further, an employer who fails to take action after learning of such a post could later face claims that it allowed a hostile work environment. The employer can discipline the employee under these circumstances but should make sure that it addresses these issues consistently. The employer should also document how it became aware of any such posts to avoid later claims of unlawful employee surveillance or discriminatory targeting.

Political Speech in the Workplace:

As discussed above, state laws place various limitations on an employers ability to limit political activity in the workplace.

Example 1: Employer puts up a poster supporting same-sex marriage in the employers lunch room. An employee believes that marriage should only be recognized between one man and one woman, rips the poster off the wall, and throws it in the trash. Can the employer discipline or terminate the employee? It depends on the state and the employers motivation. However, as discussed above, any stated reason for discipline or termination reason must be unrelated to the employees view point given that it may qualify as political activity under various state laws. For example, if the conduct violated a policy against destruction of employer property or an anti-harassment policy, the discipline or termination could be lawful even in the most restrictive states.

Example 2: Two employees are discussing presidential candidates at work by the water cooler. The two employees disagree with one another, and the conversation degenerates. One employee begins to insult the other by calling the other employee names, using profanity, and even a racial slur. Such conduct would almost certainly violate the employers anti-harassment, anti-discrimination, anti-bullying, and potentially other workplace policies. Thus, the employer likely could also discipline this employee based on the violation of these policies, but it could not discipline the employee because of their support of a particular candidate.

The examples above are just some of the types of issues that can arise when it comes to political speech. Many are arising now due to the impending presidential election, and they tend to come up more often during election years. However, given how hotly contested the current election is, it is unlikely that issues related to political speech will recede any time soon. As the examples above illustrate, the intersection of politics and the workplace can pose a conundrum for employers. As you navigate these waters, Seyfarth is here to help.