Unless you have been living under a rock, everywhere you look, you hear people talking about the 2020 election and other current political events. From the impeachment proceedings of President Trump to the 2020 election, politics is a hot topic, now more than ever.
You have heard the lesson, don’t talk about politics at work, but can employers really prohibit employees from talking about politics at work? In many circumstances, yes, they can.
Politics easily leads to discussions about race, abortion, affirmative action, war, marital rights, and a host of other highly sensitive issues that can easily make people in the workplace feel uncomfortable. Politics are subjective, with each person being entitled to hold their own individual opinion. Nonetheless, expressing political views in the workplace can cause dissension in the workplace based on the polarizing nature of politics.
A handful of state laws protect private sector employees’ off-duty conduct, including political speech that occurs off-duty. Therefore, employees are relatively free to engage in political expression outside of work hours. However, on-duty conduct is a different ball-game, and employers are generally free to regulate political speech that occurs while an employee is on-duty.
If you’re an at-will employee in the private sector (meaning you are not promised a term of employment under an employment agreement), you may be terminated for any reason, as long as that reason is not unlawful. That means you can be terminated for engaging in political speech during work hours, assuming you work in a state that does not protect political speech for private sector employees.
But Doesn’t the First Amendment Protect My Speech at Work?
The First Amendment does not protect speech that occurs in the private sector, only the public sector. Therefore, an employee cannot claim that a disciplinary action by a private employer based on his or her political speech is a violation of his or her First Amendment rights.
Even though the First Amendment applies to government employees, employees working for the federal government are not wholly entitled to discuss politics at work, either. A federal government employee may express opinions about a political issue in the workplace. Notwithstanding this fact, pursuant to the Hatch Act, a federal government employee may not engage in partisan political activity while on duty in the federal workplace. The Hatch Act defines “political activity as activity that “encourages the success or failure of a political party, candidate for office, or partisan political group.”
Federal employees should speak with their agency’s ethics office about what they are allowed to do and not do in relation to their political activity prior to engaging in political discussions at work. In the meantime, federal employees discussing politics at work should tread carefully because they could easily violate the Hatch Act with such discourse.
Do Any Other Laws Apply to My Political Speech at Work?
The National Labor Relations Act (“NLRA”) prohibits an employer from firing an employee for participating in what the NLRA refers to as “concerted activity.” The Act gives public and private sector employees the right to discuss the terms and condition of employment, as long as this discussion is for the mutual aid and protection of other employees. Employees’ (meaning two or more employees) discussion of pay, safety in the workplace, or improving workplace conditions are examples of “concerted activity,” which an employer must freely allow an employee to engage in, without retaliation.
A group of employees discussing paid family leave benefits that a political candidate is advocating for and how these benefits may affect the employees’ conditions of employment may be protected speech under the NLRA. Contrarily, discussion about a political candidate that has nothing to do with the terms and conditions of one’s employment is not protected speech under the NLRA. Accordingly, your employer can legally terminate you if your political speech is not considered “concerted activity” under the NLRA.
Based on the highly sensitive nature of politics, it is a best practice to stay away from political discourse in the workplace. The workplace should be a safe space for all people, and political conversations can quickly create discomfort and division.