There is not a constitutionally protected right to political free speech in the private sector workplace.  The First Amendment does protect freedom of speech.  However, the First Amendment only applies to government suppression of speech, not to private employers.  An employee’s political beliefs, opinions, and affiliation are not covered by a protected class for purposes of harassment or discrimination.  Many states do impose anti-retaliation legislation which may offer protections to employees.  In addition, both the Equal Employment Opportunity Commission and The National Labor Relations Board offer guidance regarding appropriate address of political speech in the workplace.  Political discourse in the workplace should be monitored so as to protect the integrity of the workplace and to protect employers from unwanted and unnecessary liability.

States, including but not limited to, California, Florida, Georgia, Maryland, New Jersey, Pennsylvania, and Virginia, have anti-retaliation statutes which prohibit employers from influencing employee voting activity and/or taking adverse employment action based on political speech or affiliation.  The District of Columbia prohibits employers from discriminating against an employee’s actual or perceived “political affiliation.”  Examples of political discrimination may include:

• Instances when an employer makes certain adverse job decisions based on the employee's political beliefs.
• Firing someone who supports gun control.
• Not hiring someone based on political party affiliation.

Remember, political affiliation is not a protected class under Federal Laws such as Title VII of Title IX.  However, as political discourse becomes more volatile, personal and polarizing, the opportunity for adverse action and corresponding legal challenge increases.  It is best to maintain an appropriate, professional culture dedicated to an organization’s business operation and function.  Where possible, keep the political rhetoric to a minimum.

EEOC guidance cautions prudence in address of political speech and affiliation.  Although political speech and affiliation are not specifically protected under federal discrimination laws, adverse employment action can potentially lead to claims of employer discrimination, harassment, and retaliation, which may violate federal, state, or local anti-discrimination laws.  If the political discussion involves a protected class such as race, color, sex, sexual orientation, gender identity, national origin, religion, age, or disability, anti-discrimination law claims may be brought for discrimination and/or retaliation.  Employees may assert that an employer’s action in response to a political discussion is evidence of illegal employment discrimination.  Further, although political speech is not covered by Title VII, companies may be found to have violated the law if an adverse employment action is shown to be based on a protected characteristic.  Protected activity includes reporting harassing conduct, discrimination or retaliation; filing a claim of harassment; providing evidence in any investigation; or intervening to protect others who may have suffered harassing conduct, discrimination or retaliation.

Social media presents as another area of potential concern.  Today, employees are more likely to engage in political speech via social media platforms than in person.  More than half of the U.S. states have social media privacy laws that prohibit employers from accessing an employee’s non-public social media posts.  These laws prohibit employers from requesting or requiring employees to grant access to their personal social media accounts; requesting or requiring employees to disclose the login information to their personal social media account; requesting or requiring employees to access their social media account in the employer’s presence; and requesting or requiring employees to accept a “friend request” from their employer.  To ensure that the employer did not obtain the post in violation of the law, it must determine the origin of a post before taking any disciplinary action against the employee for the post.  Discipline or discharge as a result of improperly obtained social media posts would subject the employer to potential liability.  Employers may prohibit employees from utilizing company technology and equipment for purposes outside the scope of employment.  Employers should scrutinize their existing Social Media policy for compliance with the NLRA and EEO laws.

The National Labor Relations Board (NLRB) is an independent federal agency enforcing the National Labor Relations Act (NLRA), which guarantees the right of most private sector employees to organize, to engage in group efforts to improve their wages and working conditions, to determine whether to have unions as their bargaining representative, and to engage in concerted activity.  The NLRA protects an employee’s concerted activity, not political free speech or affiliation.  Concerted activity is defined as two or more employees that engage in action for their mutual aid or protection regarding terms and conditions of employment.  The Supreme Court has held that “mutual aid or protection” protects employees who act “in support of employees of employers other than their own,” or to “improve their lot as employees through channels outside the immediate employee-employer relationship.”  Eastex v. NLRB, 437 U.S. 556, 564-65 (1978).

Examples of concerted activity may include:

• Two or more employees addressing their employer about improving their pay.
• Two or more employees discussing work-related issues beyond pay, such as safety concerns, with each other.

Examples of activity which may not be protected by the NLRA:

• An individual employee addressing a personal complaint with their employer.
• An individual who walks off the job in protest of their personal work assignment is not protected.

To be protected by the NLRA, political speech or activity must draw a “connection or nexus to any employment concern of any employee.”  Specifically, political speech or conduct is protected only where:

• It is concerted;
• There is a close nexus between the political expression and employment; and 
• It involves terms and conditions of employment under the employer's control.

Speech or activity focused on “the interest of the community at large” or “in furtherance of an employee's own political agenda” is not protected.  Further, the NLRA does not cover government employees, agricultural laborers, independent contractors, and/or supervisors.

The issues presented by the current political climate are potentially divisive.  As the election draws near, employees may be compelled to express their views in the workplace. If not properly navigated, they may cost employers valuable personnel, time, and expense.  Employers must review their policies pertaining to harassment, discrimination, and social media, as well as use of technology.  Training of appropriate management techniques for maintaining work culture and discourse is critical.

Our Employment Group remains available to answer questions and review policy to assist employers through this sensitive and difficult period.  Please contact James F. Devine, Esq. at jfdevine@c-wlaw.com or (717) 390-3020.

Disclaimer

The information in this article is provided for general informational purposes only and may not reflect the current law in your jurisdiction.  By reading this article, you understand that there is no attorney-client relationship between you and Cipriani & Werner, P.C. or any of our attorneys.  No information contained in this article should be construed as legal advice from Cipriani & Werner, P.C. or the individual authors.