Employment Law

Free Speech in the Workplace

There’s no question that many Americans believe that we are more politically divided than ever, and the tension from that divide is being felt in the workplace. In a 2018 study by Randstad US, 43% of survey respondents reported that they have at least one work colleague whose political views do not align with their own, and they have felt excluded at work as a result.

Source: Kunal Mehta / shutterstock

Furthermore, more than one-third of employees reported they had experienced negative bias at work because of their political beliefs. Even in situations when political talk is limited at work, the prevalence of social media makes it more likely that employees will learn of their colleagues’ political leanings.

It’s not just coworkers who can feel the effects of a heated political discussion or an employee’s politically charged social media posting. Clients and potential clients may also respond negatively to an employee’s divisive political views, particularly if those views are mistakenly attributed to the company. In a climate where many employees are passionate about their political beliefs and where social media makes it easier than ever to learn about an employee’s political views and activities, employers are left to wonder: What do I do when my employee’s political speech starts to impact our workplace morale and our bottom line?

Where Is the Line?

As a general rule, federal law does not protect an employee’s political beliefs at work. While it is true that the First Amendment prevents the government from infringing on an employee’s free speech rights, it does not protect the employee’s continued employment, at least in the private sector. (There are additional free speech protections for government employees, which are not addressed here.)

Employees have a First Amendment right to express their beliefs, but the First Amendment does not prohibit an employer from terminating an employee for saying something the employer does not like, even if the speech occurs outside of the employee’s work hours.

This means that, for the most part, private employers can regulate political discussions at work consistent with company policies and business interests without running afoul of federal law. Employers can also discipline employees for speech that interferes with the company’s operations or that the company finds to be inconsistent with its policies or corporate values.

As a very simple example: An employee who works for a gun manufacturer has a First Amendment right to join gun control lobbying groups, to protest in favor of greater gun control legislation, and to make social media postings advocating for greater gun control efforts. However, that employee has no First Amendment right to continue working for the gun manufacturer if the company decides that his political activities are not compatible with its business interests.

Considerations Besides the Law

However, while federal law does not shield an employee’s political beliefs in the workplace, there are other considerations that may impact an employee’s speech rights. Depending on the employee’s activities, other state and federal laws may come into play, as well as the employer’s own policies and practices. Before taking any action related to an employee’s political speech or activities, employers should walk through the following considerations to see if other speech protections apply.

Is this speech protected by state law?

Although there may be nothing in federal law that prohibits a private employer from disciplining or even terminating an employee whose political expressions don’t align with its business or its culture, some states do prohibit retaliation based on an employee’s political activities or voting record. Employers should be aware of any applicable state laws that forbid discrimination based on political beliefs or that protect employees engaged in political activity outside of the workplace.

Is this speech ‘concerted activity’ under the National Labor Relations Act?

Section 7 of the National Labor Relations Act (NLRA)—which applies to both union and nonunion employers—broadly protects any employee speech that is related to the “terms and conditions of employment.” Because this protection against retaliation is so broad, any blanket prohibition on “political speech” in an employer’s policies is likely to run afoul of the NLRA. Furthermore, union-related communications will obviously be protected by this section.

Is the speaker a whistleblower or engaging in other protected activity?

Does the employee’s political speech contain any allegations of discrimination, harassment, or illegal activity by the company? Don’t lose sight of your obligations to investigate allegations that may implicate Title VII, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), or other laws, even if the allegations are couched in overtly political talk.

What do your policies say?

Carefully consider your company’s policies before making any decisions about regulating or disciplining employee speech. Codes of conduct, social media policies, equal employment opportunity (EEO) and nonharassment policies, nonsolicitation policies, and others may all impact the situation. Oftentimes, it may be possible to address and manage any conflict related to employee speech without addressing the content of the speech itself. For example, a heated politically charged break room discussion that results in name calling or profanity would likely implicate the company’s code of conduct based on the employees’ behavior without requiring the employer to weigh in on the substance of each employee’s political opinions.

How have you handled other types of political speech?

Before addressing an employee’s political speech, consider how you’ve handled similar situations in the past. It’s true that employers are not obligated to treat all political speech equally, and a company may put greater restrictions on speech that goes against its business interests and corporate values. That said, in some instances, there is risk that treating employees differently based on the content of the speech could be interpreted as disparate treatment for purposes of federal and state antidiscrimination statutes. For example, an employer that previously allowed an employee to wear “Make America Great Again” clothing could be opening itself up to a race discrimination claim if it later prohibits employees from wearing “Black Lives Matter” clothing.

Does this speech affect your business?

What effect is this speech having on your customers? Your employee morale? Your company’s public image? Is the speech consistent with your values as a company (particularly your antidiscrimination and antiharassment policies)? Before taking any action in response to an employee’s speech, employers should think through and then document exactly why the speech is damaging. If the employment action is later challenged for any reason, you will be in a better position to articulate the legitimate business reasons for the company’s decision.

Shana Fonnesbeck defends employers in wide-ranging litigation, including actions brought under Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Family and Medical Leave Act, the Age Discrimination in Employment Act, the Fair Labor Standards Act, and state law.  She also counsels businesses about compliance with state and federal laws, with an emphasis on finding common-sense solutions for employee management issues that arise in the workplace. Shana regularly works with clients to revise their policies and procedures, and enjoys providing employee training at all levels. Prior to joining Littler, Shana practiced at full-service firms in Nashville and Atlanta.