With presidential primary season upon us, political discourse in the workplace may dominate water cooler chatter in the coming months. As a result, this is likely as good a time as any to review the laws governing political expression (and suppression) in the workplace.
We all know that the First Amendment of the Bill of Rights provides every American freedoms of speech or free expression. But freedom of speech doesn’t guarantee or protect the ability to speak freely all the time. In the workplace, the First Amendment applies only to, and protects the political expression of, public employees. First Amendment rights apply equally to both federal and state employees. Individuals who work for the state or federal governments, agencies, and the like are thus protected from adverse employment acts for expressing their political views at work.
Private employees, however, don’t have the same legal protection. They may be subject to discipline or termination for expressing their political beliefs at work. Private employers may regulate conduct at work that is disruptive or otherwise violates a lawful employment policy. An employer is also within its rights to prohibit individuals from wearing pro-candidate buttons or from using company resources like e-mail or other electronic forums for campaigning or political fundraising purposes if it’s reasonably believed such conduct is disruptive or counterproductive to operations.
Although the right to free speech may be limited, voting rights are generally treated as inviolate for obvious reasons. In general, employers, private and public, are forbidden from taking action against an employee for exercising their right to vote. In fact, in certain jurisdictions, employers are required to allow employees a reasonable time away from work to vote. For this reason, employers should think long and hard before disciplining or terminating an employee who is engaging in the right to vote, even if the individual failed to provide adequate prior notice of what they were doing, why they were late to work, or why they left early.
Beyond speech and voting rights, certain states provide additional protections for conduct that may or may not be political in nature. California, New York, Colorado, and North Dakota, for example, all prohibit private employers from disciplining, demoting, or firing an employee for engaging in lawful outside activities, which includes political activities.
Bottom line: It’s always best to stay away from the subject of politics at work. An employer would be wise to check with an attorney before taking any adverse action specifically in response to an employee’s political comment or expressions.
Andrew Gould is a labor and employment attorney, certified by the Texas Board of Legal Specialization, with the law firm of Wick Phillips Gould & Martin, LLP. This article does not attempt to offer solutions to individual problems but rather is informational only. Questions about individual problems should be addressed to the employment law attorney of your choice. To contact Gould or to suggest topics, e-mail: firstname.lastname@example.org.