With the presidential inauguration just behind us, it’s no surprise that political tensions are high in the workplace. With a record number of employees donning “Make America Great Again (MAGA)” hats and “Yes She Can” T-shirts at work, employers want to know whether they can—or should—implement policies to keep politics out of the workplace. While this decision depends on many factors and will ultimately be unique for each employer, employers should consult with legal counsel and be mindful of the following legal guidance.
Political Speech in the Workplace
Employers have a legitimate interest in maintaining productivity and managing their business, including controlling the work environment. So, they can implement policies about political speech in the workplace.
However, when addressing political speech, private-sector employers must carefully balance employees’ rights with the First Amendment’s legal framework, the National Labor Relations Act (NLRA), and antidiscrimination laws.
First Amendment and Private-Sector Employee Political Speech
The First Amendment protects various forms of speech, including the right not to speak and anonymous speech, but it applies only to government action, not private-sector employers. In private-sector workplaces, legal protections for political speech are minimal, and employers can generally hire or fire employees “at will” based on their political activities.
However, some state and local laws offer stronger protections, with some jurisdictions extending free speech protections to private employees or prohibiting adverse actions based on political speech. Arizona doesn’t have laws protecting political free speech in private workplaces.
NLRA Protects Certain Types of Employee Political Speech
The NLRA is a federal law that safeguards the rights of unionized and nonunionized private-sector, nonsupervisory employees participating in protected concerted activities. The standard for restricting political speech differs between nonsupervisors and supervisors. While nonsupervisors may have protections under the NLRA for political discussions related to workplace conditions, supervisors are generally excluded from NLRA protections. So, employers have more discretion in restricting supervisors’ political speech to prevent conflicts.
The NLRA covers political activity by nonsupervisors if it meets three conditions:
- It’s “concerted,” involving two or more employees or one acting on behalf of others.
- It’s for “mutual aid,” relating to wages, hours, or other terms and conditions of employment.
- It remains “protected,” meaning it doesn’t lose its protection for being disloyal, indefensible, violent, unlawful, or in breach of contract.
NLRA rights may be triggered in workplace political discussions if they involve issues related to the terms and conditions of employment, such as wages, working hours, or workplace policies. If employees engage in political activity directly connected to their working conditions or broader labor rights, this activity may be considered protected under the NLRA.
For example, conversations or protests about political issues like minimum wage laws or workplace safety conditions could be protected under the NLRA, but purely political discussions unrelated to workplace concerns, such as debates about candidates or unrelated policy matters, are unlikely to trigger NLRA protections.
Antidiscrimination Laws
Employees may argue an employer’s response to a political discussion reflects or serves as a proxy for illegal discrimination under federal or state laws. Although political speech isn’t explicitly protected under Title VII of the Civil Rights Act of 1964, you must carefully manage your responses. If an adverse action—such as firing, demotion, or discipline—is influenced by a protected characteristic such as race, gender, color, national origin, or religion, it may be discriminatory.
For example, if some employees are allowed to discuss politics but others from protected groups are disciplined for the same behavior, this could violate antidiscrimination laws. In such cases, the political discussion itself may not be the core issue, but the employer’s unequal enforcement of policies or actions based on protected characteristics could result in liability.
Policy Provisions Regulating Political Speech and Attire
Arizona private-sector employers can create workplace policies regulating political speech while ensuring their policies don’t infringe on employees’ rights. Implementing clear, consistent guidelines helps foster a respectful work environment and maintain productivity. Key provisions may include the following:
- Code of conduct. Consider adding a company code of conduct or updating the current one to address political activity. The code should clearly communicate that while the employer respects employees’ rights to engage in political speech and activities outside of work, such discussions at work can detract from productivity and workplace harmony. It should also outline unacceptable behavior to ensure political discussions or expressions, such as political jokes or offensive remarks, don’t create discomfort or escalate into hostile work environment claims. By emphasizing mutual respect and professionalism, the policy helps prevent conflicts while promoting a positive workplace culture.
- Dress code policy. A dress code policy can prohibit employees from wearing apparel or accessories with political messages. To avoid NLRA violations, the policy should focus on prohibiting all non-work-related political messaging and be consistently enforced across all employees. For example, an employer might prohibit clothing or accessories displaying political names or non-work-related slogans. As long as the policy is neutral, equally applies to all employees, and doesn’t restrict NLRA-protected activities related to working conditions, it’s compliant with labor laws.
- Nonsolicitation policy. You can implement a nonsolicitation policy that prohibits the distribution of political materials or the posting of political signs during work hours or in working areas. The policy must be applied consistently and uniformly across all employees to avoid the appearance of favoritism or bias toward any particular political group or message. The policy should clearly state that it doesn’t apply to activities protected by the NLRA, such as distributing union-related or other protected materials, as long as these activities occur during nonworking hours and in nonworking areas, such as break rooms or parking lots.
- Political speech policy. You should establish clear guidelines on when and where political discussions are permissible. You may choose to implement a total ban on political speech unrelated to NLRA-protected matters or ban such speech only during working hours and allow it during nonworking time in nonworking areas (e.g., lunch breaks and break rooms). Regardless of the approach, any policy should be applied consistently and uniformly to avoid potential bias or discrimination claims.
- Harassment and discrimination policies. You may update the company’s harassment and antidiscrimination policies so they apply to political speech. Political discussions that lead to derogatory, discriminatory, or abusive remarks aren’t protected under the NLRA and should be prohibited. Employees should be made aware that political speech that creates a hostile work environment or targets protected characteristics (race, gender, religion, etc.) won’t be tolerated. This reinforces the company’s commitment to a safe and inclusive work environment while clearly drawing the line between permissible and impermissible speech.
By implementing these policies, you can foster a respectful and inclusive work environment while managing political speech in compliance with legal standards.
Emily Brodner is an associate and Juliet S. Burgess is a founding partner at the Burgess Law Group, specializing in labor and employment law and commercial litigation.