As we near Election Day, employers are again faced with the thorny challenges posed by political expression at work. When adopting policies to address political speech in the workplace, employers must be mindful of a veritable minefield of legal issues.
To start, the issue that arises most frequently, the First Amendment, does not apply to private employers. However, many states have adopted laws that protect employees against discipline for engaging in certain lawful off-duty conduct. For example, South Carolina prohibits employers from terminating the employment of a worker “because of political opinions or the exercise of political rights and privileges” guaranteed by the state or federal constitution. Courts have narrowly applied this particular law in the past and held it does not apply to certain speech that employees have argued is political, such as the display of the Confederate flag in the workplace.
In addition, the National Labor Relations Act protects the rights of employees to engage in “concerted activities” for purposes of mutual aid and protection. If political speech relates to working conditions, even tangentially, then employers should stop to consider the NLRA before taking adverse action. For example, if an employee tells her co-workers that a particular political candidate would support changing the company’s safety policies, then such statements could arguably constitute “concerted activities.”
Finally, employers should be cognizant of protections against discrimination and retaliation when deciding how to address political speech in the workplace. Anti-discrimination laws such as Title VII do not directly prohibit employers from regulating political speech in the workplace. However, taking adverse action against employees based on what is arguably political speech is likely to increase the chance that those employees claim to be victims of discrimination or retaliation.