While the 2020 general election is now behind us, politics are still on a lot of people's minds. For some employees, their passion for politics are not put on hold when they arrive at work. Here, we explore what employers can and cannot do when it comes to regulating employee political activity.
State and Federal Laws on Limiting Political Activity at Work
With some exceptions, private employers generally have broad authority to limit political activity and speech in the workplace. The First Amendment applies only to government action and does not create a universally protectable right to free speech.
Furthermore, there is no federal statute prohibiting employment discipline or discrimination on the basis of political activity. As such, subject to a few limitations, from a federal law perspective, employers are free to implement workplace policies that prohibit their employees from engaging in political activities and speech.
However, a number of cities and states have laws that afford employees more liberty in their political activities than is guaranteed on the federal level. Included among those are California, Seattle (but not Washington state as a whole), New York, and Washington, D.C. These laws vary by jurisdiction, so it is important to learn the relevant statute before taking action as it may contain important exceptions to the general rule described above.
On the federal level, the most important exception to the general rule might be found in the National Labor Relations Act (NLRA). Some collective bargaining agreements (CBAs) prohibit employers from discriminating or retaliating based on an employee's political activities.
Regardless of whether it is spelled out in a CBA, the NLRA allows employees to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection …" This means that employees across the country, both union and non-union, are entitled to engage in activities and communications regarding wages, hours, and other terms and conditions of employment, outside of work.
The principle applies even when those issues are not directly related to their particular workplace. Of course, an employer may still enforce rules, such as an attendance policy, if the employees' political activities result in rule or policy violations, even if the employee has missed work for political activities related to wages, hours, etc.
Why Limit Employee Political Activity?
While the right to free speech is generally protected only from government action, the principle is an important component of a healthy democracy. So why might employers want to limit employees' ability to engage in political activity? There is at least one legal reason and one business reason.
If allowed, it is possible that political activities and conversations might turn to topics regarding protected characteristics such as race, gender, or religion. Some examples might relate to Black Lives Matter, LGBTQ+, or efforts to increase diversity, equity, and inclusion in the workplace.
Should such an activity result in discipline from the employer, along with being at risk for violating a state law or local ordinance, the employer might be perceived as clamping down on—and therefore discriminating against—employees who might fall within those protected classes. Accordingly, regulating political activity potentially exposes employers to liability.
From a business perspective, it is certainly true that a more cohesive workforce is a more productive one. Given the divisive nature of politics, it might make sense to ask employees to leave such engagements at the door.
Conversely, some employees may not be able to stay focused or feel included and/or welcome if they are unable to have some level of political engagement or expression. An employer might find it useful to adopt a "middle ground" that might work for most situations, particularly in those jurisdictions that protect employees who engage with co-workers on political issues.
There is no substitute for expert advice when dealing with issues fraught with personal rights and potential liabilities for an employer. The best policy surrounding political activity is different for every business. When developing rules and policies addressing the subject, be sure to consult labor and employment counsel to ensure your rules and policies comply with applicable federal, state, and local laws.