HR professionals have the responsibility to enforce workplace rules, promote cooperation, insist on civility and respect, and—most of all—remind folks they are on one team, at least in the workplace. Meanwhile, another election season is imminent. How do you keep people working productively when those very divisive discussions are happening at work?
No Constitutional Right to Free Speech in Private Workplaces
Given politics’ ability to detract from teamwork and collegiality, employers may wonder whether they could lawfully discipline or discharge an employee for various actions:
- Placing a “Make America Great Again” bumper sticker on his car;
- Sending e-mails to coworkers soliciting support for the repeal of Obamacare;
- Hanging controversial political cartoons on her office door;
- Writing a blog at home stating his opinions about the results of the most recent midterm elections and forecasting the upcoming 2020 races;
- Sending coworkers a Saturday Night Live political skit from YouTube using a company computer network.
The answer, in each situation, is, “It depends!”
Political party affiliation and political speech generally aren’t protected in the workplace like gender, race, color, age, national origin, religion, disability, sexual orientation, gender identity, etc. Free speech, however, still has some protections. Actions you can take will depend on, for example, whether you are a public or private employer, which state the employee works in, and whether the workplace is union or nonunion. Other relevant considerations include company policies and practices, state or local laws, and the National Labor Relations Act (NLRA).
Contrary to popular belief, there is no right to “free speech” in private workplaces under the U.S. Constitution. To paraphrase former Supreme Court Chief Justice Oliver Wendell Holmes, Jr., an employee may have a constitutional right to talk politics, but he has no constitutional right to be employed.
Even the First Amendment doesn’t protect political speech at work. Employers generally have the authority to control how employees express themselves on the job, and may discipline and terminate those who act unprofessionally or create disturbances—even if the expression is political in nature.
No Comprehensive Protection in State Laws Either
Many states have laws protecting employees from discipline, termination, or other penalties based on their exercise of federal or state constitutional free-speech rights, but the protections aren’t comprehensive. For examples:
- One Alabama factory worker was discharged after refusing to remove a candidate’s bumper sticker from her car.
- A Pennsylvania waitress was let go after customers complained she was wearing a Tea Party bracelet at work.
- In Mississippi, a bank supervisor was discharged after black employees complained that the supervisor commented how she wished President Barack Obama’s race hadn’t got so much attention during his inaugural proceedings.
- One sports commentator was suspended after tweeting that President Donald Trump was “ignorant,” stating that his election was a “direct result of white supremacy,” and commenting on the NFL kneeling controversy.
- An employer discharged employees who participated in a protest and violence in Charlottesville, Virginia; the dismissal was based on the employees’ social media posts and news coverage.
- A Virginia woman was fired from her job after raising her middle finger as President Trump’s motorcade drove by. (The scene was captured on a video that went viral.)
Polarizing Talk’s Impact on Workplace Practices, Policies
Political discussions at work are rife with potential problems and concerns for HR. Employee one-on-one discussions can lead to potential disagreements and lack of cooperation. Group discussions can turn into a source of distraction, hard feelings, and interference with work. Politics in e-mail messages on company systems may lead to inconsistent applications of personnel policies. Materials on desks and office walls can be controversial and disruptive. Employees could request leave in support of a candidate or political party.
The effects of political speech aren’t confined to employee relations and work ethic. If political activity occurs in the work area, the result may be customer complaints or an impact on business. Employee activity, such as distributing political materials, may appear to reflect an endorsement by the employer. Political hats, buttons, or pins may be in conflict with company uniforms. In addition to being distracting, social media messaging may have brand implications.
Political speech potentially implicates many workplace policies, such as no-solicitation/no-distribution rules, access rules, appearance standards, and policies on social media and use of the company’s computers and equipment. Also relevant are prohibitions against discrimination and harassment, rules on civility and disparagement, and concerns about whistleblowing and retaliation.
Discussions of hot-button issues can even have legal consequences. Conversations about gender or sexual orientation could lead to sexual harassment allegations, and debates about national origin might lead to real concerns regarding immigration.
Legal Considerations to Keep in Mind
Conscientious employers will be mindful of some overarching legal considerations regarding employee speech.
Public-sector employers use a balancing test to determine whether an employee’s speech is protected. The test balances (1) the employee’s interests as a citizen versus (2) the state’s interest in promoting the efficiency of the public services it performs through its workers. Relevant considerations for public employers include whether the speech relates to a matter of public concern, has an effect on the public and the public entity, and was made pursuant to the employee’s official duties.
The First Amendment prevents the government from making laws “abridging the freedom of speech,” but governments can still limit speech in certain forums or based on its especially obscene or aggressive nature. In 2006, in the case of Garcetti v. Ceballos, a district attorney had been passed over for promotion after authoring a memorandum questioning the accuracy of a search warrant that was important to the government. In a 5-4 decision, the U.S. Supreme Court held that public employees who make statements pursuant to their official duties aren’t protected from employer discipline by the First Amendment. In those circumstances, the Court said, an employee isn’t speaking as a private citizen for First Amendment purposes.
State governments place various limitations on speech. In Cox v. NH, a large group of Jehovah’s Witnesses was arrested after participating in an information march without a permit, which was required by state statute. The U.S. Supreme Court held that governments could create “time, place and manner” restrictions without infringing on constitutional rights. The First Amendment’s protection didn’t extend to cover the particular manner of the group’s speech—in a parade and without a legally mandated permit.
In Chaplinski v. NH, Walter Chaplinsky was proselytizing on a street corner and was arrested after calling a police officer a “damned fascist.” The Court held that it is constitutional to prevent or punish certain, limited classes of speech, including “fighting” words such as Chaplinsky’s.
While employers may restrict employee speech—including for government workers whose speech is part of their official duties—without violating the First Amendment, states often create protections for speech and expression. For example, public employees in New Hampshire have a statutory right to discuss government entities and policies without interference. If someone violates that right, an employee may seek an injunction or damages.
Private-sector employers aren’t governed by any First Amendment “free speech” right to political expression in the private workplace. Some states and local governments do have laws protecting employees from adverse employment actions because of their political speech or activities outside of the workplace. The scope of the protections varies greatly among states’ laws, so consult with local counsel before taking action.
The NLRA provides additional protections for certain speech. The Act gives employees at union and nonunion workplaces the right to help one another by sharing information, signing petitions, and seeking to improve working conditions in a variety of ways. It doesn’t specifically protect political speech, but speech and related action are protected if they are both (1) concerted (i.e., a group or individual expressing concerns on behalf of similarly situated employees) and (2) related to a work issue. The scope of the protections also varies greatly by state, so consult with local counsel before taking action.
Political speech in the workplace also may raise issues related to antidiscrimination. Under Title VII of the Civil Rights Act of 1964 and related state statutes, all employees have the right to be free from discrimination or harassment based on their membership in protected categories. The protections apply to behavior both in and out of work, including employee gatherings (whether sponsored by the company or not) and social media, and employers must promptly and appropriately investigate all discrimination or harassment allegations.
Best Practices for Employers
Certain practices can help you to create cooperative and civil workplaces while still complying with the legal protections for employee speech. To attain such a workplace, establish and communicate clear expectations about your company’s policy on political expression and the sound reasons for it. Train supervisors and managers on the policy, including steps to take if they observe inappropriate conduct and avoiding engaging in inappropriate conduct themselves (e.g., favoritism toward certain employees based on political affiliation or views). Don’t overreact to short discussions among employees, but don’t permit significant distractions during working time. Use progressive steps—beginning with a simple reminder or coaching—to enforce company policy.
Some best practices allow you to target specific forms of potentially inappropriate political speech. Restrict access to bulletin boards or e-mail systems for political purposes. Don’t allow third-party political activity on the premises. Enforce dress code and attendance policies, consistent with past practice. Remind employees of policies regulating Internet and e-mail usage in the workplace, but be mindful of the NLRA. (For example, an electronic communications or social media policy would be illegal if it prohibits an employee from criticizing, disparaging, or making false, offensive, injurious, or negative statements about the employer or supervisor electronically, including on social media.)
Finally, remember to investigate any employee complaints of harassment promptly and appropriately, similar to other investigations of reported misconduct, and don’t hesitate to reach out to local counsel if a situation arises.
Madeline Hutchings is an Associate at Sheehan Phinney and a member of the estate planning and family law practice group. She contributes to the New Hampshire Employment Law Letter and can be reached at email@example.com.