No First Amendment, No Problem: Protections for Political Speech in the Workplace
Many employers may know that the First Amendment does not apply to the private sector workplace. Rather, the First Amendment only protects against government actions. The First Amendment’s limited scope, however, should not give employers a false sense of security about actions that they can take in response to political speech in the office. Indeed, there are several legal protections that shield employees from adverse employment actions due to political speech. Here is a list of the primary protections that may come into play:
State and Local Laws Expressly Protecting Political Activity.
- Some state and local laws expressly prohibit employers from interfering with political speech oriented activities of their employees. These activities may include donating to political causes, signing petitions, running for office, or belonging to a political party. Some of these protections are far-reaching. For example, Connecticut bars employers from “subject[ing] any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by” the First Amendment.
Federal, State, and Local Laws Protecting Certain Speech.
- The National Labor Relations Act. The National Labor Relations Act protects the ability of non-supervisory employees to engage in concerted activities for the purpose of their mutual aid and protection. Therefore, employees collectively advocating for a political candidate on the basis that the candidate, if elected, would be able to better their working conditions could be considered protected speech.
- Anti-Retaliation and Whistleblower Laws. Many employment laws, such as anti-discrimination laws, sick leave laws, and workplace safety laws, contain anti-retaliation provisions. These provisions bar employers from taking adverse actions against employees for engaging in “protected activity.” Protected activity can encompass many actions, but it often consists of the good-faith reporting of or opposition to employer conduct that is believed to violate the law. Consequently, an employee making a public protest about her employer’s perceived pay disparities between men and women in violation of the Equal Pay Act could be considered “protected activity,” in response to which her employer could not penalize her. Similarly, many laws protect whistleblower activity, such as reporting regulatory violations by the employer. It is easy to see how such reporting could be shrouded in political language or done for political purposes.
Other Legal Protections.
Not all legal restraints that protect political speech in the workplace are codified in statutes or regulations. There are other ways in which employee political speech may be protected:
- Public Policy. Employee engagement in political speech is protected by public policy in some states. For example, in Mississippi, it is unlawful for an employer to discharge an employee for reporting his employer’s illegal acts. Therefore, under this standard, an employee working at a factory who complained of illegal toxic dumping in a letter to a Congressman would likely be protected.
- Private Contract. Contracts may place limits on an employer’s ability to restrain employee political speech. For example, not all employees are at-will. Some employees, whether under an employment contract, a collective bargaining agreement, or some other agreement, can only be discharged for cause. Because engaging in political activities may rarely fit the definition of “cause” under such agreements, these employees may be protected from discharge based on political activity. In some circumstances, an employment contract may specifically grant employees certain freedoms to pursue speech-related activity, such as a “carve-out” that allows a full-time employee to engage in freelance writing while employed.
- Anti-Discrimination Laws. Many federal, state, and local laws ban discrimination on the basis of protected characteristics, such as race, sex, disability, and age. In some circumstances, these laws may protect political speech. For example, an employer that historically allowed employees, who happened to be white, to advocate for religious rights could be in violation if that same tolerance was not later extended to employees, who happened to be Latino, advocating for immigrant rights. Similarly, if the result of work rules relating to speech disproportionally impacts a protected class of employees, an employer may have violated anti-discrimination laws.
As the above protections demonstrate, employers should not presume that the First Amendment’s inapplicability to private action allows them to take any adverse action against employees due to their political speech. On the other hand, employers should not overestimate these protections either. Instead, each circumstance is different and should be evaluated on its own terms. For example, an employer who disciplined employees for posting political messages on their social media accounts to better working conditions after their shifts ended could see a much different result in litigation than an employer who disciplined employees for posting those same messages while on the clock and not on break. Even the Connecticut law discussed above that essentially applies the First Amendment to the office requires that the First Amendment activity “does not substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and the employer.”
In any event, when issues of employee political speech in the workplace arise, employers should pay special attention and consider seeking legal guidance.
For more information on this subject, you may contact the Labor and Employment practice.