Politics in the Workplace

The politically charged 2020 general election is around the corner. According to a Pew Research Center survey, “Americans are now substantially more likely to see very strong conflicts between Democrats and Republicans than they were in the past. … [I]n December 2012, 47% of Americans characterized partisan conflicts as very strong. Four years later, in December 2016, 56% said this, and 71% see these conflicts as very strong” in 2020. “This trend is consistent with rising partisan antipathy over the last several years,” including associating more intense and personal negative traits with members of the opposing political party.

These political divisions often seep into the workplace, leading to questions about free speech, employment policies, and whether it okay to talk politics at work. Below are brief answers to some common questions relating to politics in the workplace.

Does the First Amendment Protect an Employee’s Speech in the Workplace?

It depends. Often forgotten is that the First Amendment applies to government restrictions on speech. Thus, employees of state and federal governments are protected by the First Amendment (and the Fourteenth Amendment). This means that government employers cannot discriminate or retaliate against employees based on free speech. However, the law regarding free speech is complex and protections are generally limited to matters of public concern.

On the other hand, the First Amendment does not apply to private employers. As far as the First Amendment is concerned, private companies may regulate speech—even prohibiting all or certain types of political speech entirely. Thus, employees of private companies are not protected by the First Amendment against discrimination or retaliation for political speech, and an employer may discharge an employee for such speech and activities, whether done at work or off-the-clock. The only protections provided to private employees generally arise from statutes and contracts, which are discussed below.[1]

What Statutes Relating to Political Speech Apply to Private Employers?

Although the First Amendment does not apply to private employers, certain statutes may limit private employer actions relating to political speech.[2] The National Labor Relations Act protects certain speech or activities by private employees that relate to the terms and conditions of their employment. Specifically, section 7 of the NLRA states that employees have the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Thus, the NLRA may protect certain types of employee speech and political advocacy if it concerns work environment or conditions, compensation, hours, supervisors, or policies.

In addition, adverse employment actions relating to political speech may be unlawful if linked to prohibited discrimination or retaliation. Title VII, the Americans with Disability Act, and the Age Discrimination in Employment Act protect against discrimination and retaliation based on an individual’s race, sex (including sexual orientation or gender identity), age, religion, national origin, and disability. To illustrate, if a black employee is fired for engaging in political speech or activities, but a similarly situated white employee is not fired for engaging in similar or opposing political speech or activities, then the termination could be unlawful if shown to be a mere pretext for race discrimination.

Should Employment Contracts or Policies Include Provisions Relating to Political Speech?

Restrictions relating to speech are frequently written into employment contracts, employment policies, and collective bargaining agreements. If, however, political speech restrictions are not contained in company employment agreements and policies (including handbooks), employers should seriously consider adding them. Indeed, due to the risk of common law and hostile work environment claims resulting from ad hoc restrictions on political speech, it  may be wise for businesses to implement even-handed policies relating to political speech.[3] Some key policy provisions include:

  1. No Political Activity. Although they must be carefully prepared to avoid NLRA violations, these provisions may prohibit purely political activities that interfere with the business or disrupt others. Such policies may also clarify that employees should not, and do not, speak for the employer on political issues. Employers should ensure that these provisions are enforced consistently to avoid disparate treatment. 
  2. Non-solicitation. These provisions usually prohibit employees from soliciting others at the workplace during working time. Under these policies, employers may treat political campaigning, including electronic campaigning, just as they would other forms of solicitation. This means that providing literature or anything else intended to sway political support may be restricted.
  3. Dress codes. Dress policies may prohibit employees from wearing political buttons, slogan, and logos, provided they are enforced consistently and impartially. However, under the NLRA, certain employees must be permitted to display labor union insignia, even if it contains a political message.

Freedom of speech is a foundational value in this country and should be respected by employers. But it is not a right in private sector workplaces. Thus, carefully balancing the value of free speech with the importance of maintaining an inviting work environment and limiting political conflict among employees may well be worth the effort.

[1] Liability concerns, such as avoiding potential claims for tortious discharge in violation of public policy, may also curb private employer actions regarding political speech.

[2] This article focuses on federal laws. However, many states have passed employment laws that touch on political speech. For instance, in Nevada, it is unlawful for any employer “to make any rule or regulation prohibiting or preventing any employee from engaging in politics or becoming a candidate for any public office” (although, Nevada appellate courts have not yet interpreted what it means to be “engaging in politics”). See NRS 613.040. In Arizona and Utah, when paying an employee, employers are prohibited from providing political mottoes, devices, or arguments meant to influence the employee’s opinions, views, or actions. Further, within 90 days of an election, employers may not display or post in a workplace (or other location where an employee may be working) any information or threat concerning adverse consequences that will result from the election. See A.R.S. § 16.1012; Utah Code Ann. § 20A-3a-502.

[3] When preparing employment agreements and policies relating to politics, it is important to remember that employers are often required to provide time off for employees to vote. See A.R.S. § 16-402; NRS 293.463; Utah Code Ann. § 20A-3a-105.