“Some people’s idea of free speech is that they are free to say what they like, but if anyone says anything back, that is an outrage.” — Sir Winston Churchill
Today, unlike any other time in history, American citizens are voicing their political views loudly and in a variety of different forms, from traditional speech to social media posts. The political temperature in the United States is high, and with the rise in local, state, and national protests related to COVID-19, Black Lives Matter, women’s rights, and other issues, along with the fact that we are weeks away from the most contested and emotionally charged presidential election this country has ever seen, preparing for the likelihood that political discussions will spill into the workplace is recommended.
Employees might engage coworkers in political debate, and some might even try to campaign in the workplace. It is useful for employers to understand how the law treats political speech in the workplace and implement policy accordingly.
Politics at work can create a negative environment
A Society for Human Resources Management (SHRM) poll conducted last year found that 42% of employees polled have had a “political disagreement at work” and 12% have experienced political affiliation bias. Of those surveyed, 56% stated that political discussions in the office have become more common in the past four years.
A 2016 study by the American Psychological Association found that political discussion in the workplace resulted in increased stress, isolation, and hostility. Not surprisingly, there is great potential for political discussions to lead to disagreements that could invite inflammatory comments or negative treatment. In turn, these actions could lead to claims of discrimination, harassment and/or retaliation. For example, an employee could allege that a supervisor has a discriminatory bias (gender, religion, age, disability) and use inflammatory comments to support the claim. There is little question that politics in the workplace can diminish workplace productivity and work quality and expose employers to liability.
Freedom of speech
It is a commonly held misconception that the First Amendment guarantees freedom of speech at work. The First Amendment only applies to government action and does not limit private employers’ right to regulate employee communication in the workplace. Accordingly, with some noted exceptions that will be discussed in this article, employees do not have a general right to free speech in a private employer’s workplace. This means that private employers have the right to limit or even prohibit political speech in the workplace. This includes all types of speech, including, but not limited to conversations, emails, political buttons, shirts, posters, photographs, etc.
Workplace policy dos and don’ts
Given that private employers have the ability to limit or prohibit political speech in the workplace, employers can have a policy that clearly sets forth the rules regarding political speech and the discipline that can result from a rule violation. Of course, it is advisable for employers to train their employees that the policy is understood. However, a “no free speech or political activity in the workplace policy” must be narrowly tailored so that it does not violate the National Labor Relations Act (NLRA) or any state or local law that protects speech in the workplace. The NLRA restricts an employer’s right to limit workers’ communications about wages, hours, and terms or employment conditions during non-work time in non-work areas. These restrictions apply to union and non-union employers. Thus, “protected concerted activities” must be excluded from a policy that limits or prohibits political speech in the workplace.
Also, the laws in some states provide some free speech or political activity protections. For example, Pennsylvania has a common law public policy exception to the at-will employment doctrine. Some Pennsylvania courts have held that freedom of political expression, even for private employers, is an important public policy and that employers cannot take tangible employment action against an employee based solely upon the expression of political opinion. Accordingly, employers, especially those in multiple jurisdictions, should verify that their political speech policy does not violate any law or precedent.
Typically, policies limit employee’s political communications during work hours in work areas (this would include distributing campaign materials or seeking campaign contributions), providing exclusions for NLRA protected speech and/or actions, and any others that might be afforded at the state or local level. Nonsolicitation policies can also be used to limit and/or prohibit campaigning in the workplace. Social media policies that restrict access to social media during work time and on work property can also help employers to minimize political discussion at work.
Employers who proactively create policy and set standards with reference to political speech in the workplace are more likely to ease workplace tensions, increase productivity, and minimize exposure to discrimination, harassment, and retaliation claims. Employers should consult with counsel concerning any policy or practice to make certain that they comply with federal, state and local law.
Stephanie K. Rawitt, a member at Clark Hill, provides services and advice to employers on employment and labor matters. She represents various clients, including hospitals, public entities, nonprofit organizations, private businesses, colleges, universities, and corporations. Contact her at [email protected].