An employee is claiming they have the right to say whatever they want at work about the upcoming election, saying they have a First Amendment right to free speech. Are they correct? “But I have a First Amendment right to say whatever I want!” is a common refrain you might hear from applicants or employees who face workplace repercussions for the things they say. However, the First Amendment’s “Freedom of Speech” guarantee generally does not apply to private employers disciplining their employees for engaging in prohibited conduct. The Constitutional freedoms found in the Bill of Rights and elsewhere generally restrict state action by the government and not private employers deciding how to manage their workforces. So that means we have an unrestricted right to prohibit whatever election-season speech in the workplace we want? And we can discipline or even fire any employee that violates our rules? Not so fast. Private sector employees have the right to engage in concerted activity under the National Labor Relations Act (NLRA) for purposes of collective bargaining or other mutual aid or protection. This is true in both union and nonunion work groups. Under Section 7 of the NLRA, concerted activity includes statements made for the purpose of initiating, inducing, or preparing employees for group action, such as discussions about higher wages, changes to work schedules, and job security. Therefore, certain political discussions impacting terms and conditions of employment would fall under the NLRA’s purview, while political activity that is unrelated to employment concerns would not be protected. It is worth noting that the General Counsel for the National Labor Relations Board (NLRB) wants to expand the definition of protected concerted activity to specifically include certain “political statements,” such as writing phrases in support of political and social causes on company uniforms. We’ll track the status of this issue throughout election season and provide an update should employers need to adjust their actions. Do we have any other concerns besides protected concerted activity claims if we discipline or terminate an employee for expressing a political opinion at work? Federal antidiscrimination laws don’t directly protect political activity or speech, but your workers’ activity or speech could trigger these laws. If the discussion directly (or perhaps even indirectly) involves race, color, sex, sexual orientation, gender identity, national origin, religion, age, or disability, you need to be careful. After all, an employee could claim that your action responding to their political discussion on such subjects is actually a proxy for illegal discrimination. Think twice and check with counsel before disciplining any employee for engaging in such a discussion. You’ll also want to be consistent in how you address political discussion across all employees so as not to create any appearance of preferential treatment based on a protected characteristic. You’ll also want to check the state law where you operate before taking action. Some states broadly prohibit adverse action against an employee based on political expression, while others provide no such protections. In North Carolina, for example, it is unlawful for an employer to intimidate, discharge, or threaten to discharge an employee on account of any vote the employee has cast or may intend to cast. Whereas, in South Carolina, it is unlawful to intimidate or discharge an employee “because of political opinions or the exercise of political rights and privileges guaranteed to every citizen” by federal or state law. If you operate in such a state take extreme caution prior to taking action against any employee who has made their political expression known. One employee is wearing a “Trump 2024” button to work. Another one just hung a “Biden/Harris 2024” poster in their workspace. And one more employee told us they just got a t-shirt promoting a local candidate and will be wearing it to work this Friday. We’re afraid this will all lead to arguments and tension and become a workday distraction. What can we do about this kind of political expression? Creating and implementing a consistent dress code or appearance policy is key in these situations. Be sure to consistently enforce any rules prohibiting employees from wearing apparel and accessories with political statements. For example, if you don’t allow employees to wear “MAGA” hats in support of Trump, you also shouldn’t let them wear hats promoting Biden or any other political candidate. Likewise, you can establish reasonable, consistent limits on posters and other workplace displays, so long as you comply with the NLRA rules mentioned above regarding employment topics. An employee is volunteering for a local campaign and wants to help promote the candidate here at the workplace. They want to email around a call for volunteers and hang a sign-up sheet in the breakroom, and have even asked about holding a lunch-and-learn visit from the candidate. How should we approach this? You can generally prohibit employees from engaging in political activities such as campaigning or distributing political literature in the workplace during work hours. But there are some things you need to know about any non-solicitation rules you put into place. - You need to enforce them consistently and across the board. If you allow an employee to post a sign-up sheet for Girl Scout cookies in the breakroom, you may also have to allow someone else to post a political rally sign-up sheet.
- You need to make sure you don’t stop employees from engaging in political solicitations during breaks and meals (even paid breaks).
- Make sure you distinguish between union-related activities or other actions taken for the mutual aid and protection of your workers – which are generally protected – from political speech.
Is there anything we can do to try to minimize the chances of our workers getting into arguments about politics this year? And what should we do if we learn that workers are already getting into arguments? You probably already know that workers want to talk to each other about politics. In fact, 61% of workers in the country say they’ve discussed politics with co-workers during the last year, according to a Glassdoor survey. While you might not be able to stop the conversations altogether, it’s important to set expectations on professionalism and appropriate workplace interactions. Consider taking the time early this year to train managers on how to spot unproductive or heated conversations and address them appropriately. You may also want to designate a contact in your HR or legal department for managers to call with concerns. You’ll also want to work with legal counsel to ensure your workplace conduct policies are up to date given that the legal standards have recently shifted when it comes to how workplace conduct can be addressed. | 
