With this year’s presidential election underway, escaping coverage and conversations about candidates and campaigns seems nearly impossible. While there’s nothing new about political coverage increasing during an election year, the unprecedented events during this year’s election cycle along with the extreme polarization of modern-day politics in America have led to increased levels of passionate discourse between those with opposing viewpoints. Employers shouldn’t be surprised that these political discussions affect the workplace and should be prepared to lawfully respond to these situations.
Listed below are general legal frameworks that may apply to an employee’s political speech and therefore should be considered before taking any action against an employee for such speech.
First Amendment
When facing discipline for political speech in the workplace, employees consistently cite the First Amendment and argue they are entitled to free speech. The First Amendment does protect freedom of speech. However, that protection is focused on government action.
In contrast to public employers (including federal, state, and local governments), the First Amendment’s constitutional protections generally don’t apply to private-sector employees. In fact, even public employees maintain only limited speech rights in the workplace. Public employers may discipline employees when their speech runs afoul of a balancing test that compares the government’s interest in limiting the speech with the employee’s First Amendment rights.
In short, the First Amendment doesn’t give any employee an unlimited right to say what they want in the workplace.
National Labor Relations Act
Although private employers don’t have to engage in the same considerations as public employers with respect to the First Amendment, the opposite is true with respect to the National Labor Relations Act (NLRA), which applies to most employees in the private sector but doesn’t apply to government employees.
Along with protecting employees’ right to form or join unions, the NLRA also permits employees to engage in protected, concerted activities to address or improve working conditions. Employees protected by the NLRA therefore can discuss political and social activities that affect and involve the terms and conditions of their employment. Employer action that may be interpreted as deterring, limiting, or prohibiting this speech could lead to an unfair labor charge against that employer in front of the National Labor Relations Board (NLRB).
Antidiscrimination Laws
Antidiscrimination laws, such as Title VII of the Civil Rights Act of 1964, may likewise place restrictions on speech in the workplace.
When political speech intertwines with commentary on protected characteristics—such as race, gender, and religion—the risk of discrimination and harassment concerns rise. Additionally, you must ensure that actions taken against employees based on speech are applied in a nondiscriminatory and nonretaliatory manner.
State and Local Laws
You must also consider whether state and local laws protect employee political speech. For example, municipal employees in Oklahoma may actively participate in partisan and nonpartisan political activities so long as the employee’s participation occurs while off duty and not in uniform. However, municipal employees may attend and express their views at city council meetings or any other public meetings of municipal entities.
Other states—such as California, Colorado, and New York, for example—have enacted statutes protecting employee political activity while off duty and limiting employers’ ability to discipline employees for such activity.
Employer Takeaways
Based on these general legal frameworks, you should keep the following things in mind.
You must first determine whether employees are subject to any federal, state, or local laws addressing political speech. Based on this determination, you should ensure all policies and procedures are updated to comply with applicable law.
You must also remember that, even when an employee may have protected political speech, you aren’t required to permit political speech when it is abusive, offensive, or threatening. Whether an employee’s speech is abusive, offensive, or threatening will depend on a detailed analysis not only of the facts underlying the political speech (e.g., the place of discussion, the subject matter of the discussion, the nature of the speech, etc.) but also which laws apply to the employee.
You need not navigate these overlapping (and often, confusing) legal frameworks alone but can reach out to counsel as situations arise to ensure you are complying with applicable law while maintaining productivity and safety in the workplace.
Alyssa Lankford is an attorney in the Oklahoma City office of McAfee & Taft. She may be contacted at alyssa.lankford@mcafeetaft.com.